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PETITIONER: P. BHASKARAN & ORS.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT23/11/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J)

CITATION:  1996 AIR  794            1996 SCC  (7) 179  JT 1995 (9)   285        1995 SCALE  (7)139

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      The Central  Administrative Tribunal,  Ahmedabad in its order dated  September 29,  1989 in Misc. Application No.986 of 1988  dismissed the  application  of  the  appellants  to review its  order made in T.A. No.263/86 on August 14, 1987. Therein, the  Tribunal had  directed the  seniority list  of U.D.C. to  be drawn  afresh in  the light  of the directions issued in that order, namely, no promotion should be made on the basis  of options  without resorting  to the recruitment rules in terms of the quota laid down and the procedures for filling it  up could  be regarded  as valid as long as it is not ad  hoc. Such  ad hoc  promotions  do  not  deprive  the seniority of  the respondents  5 and  6 in  this appeal. The promotions given  on ad  hoc basis  cannot give any right to seniority.  The  regular  promotee  cannot  be  deprived  of seniority on the basis of the ad hoc promotions given to the L.D.Cs. who  were promoted  on transfer  but were juniors in the cadre  of L.D.Cs. To the said order, the appellants were not impleaded as parties.      The facts  in this  case are  that the  appellants  are L.D.Cs. in  the Western Zone of the office of the Controller of Imports  & Exports  comprising Rajkot, Ahmedabad, Bhopal, Bombay &  Kandla. Common seniority list as L.D.Cs. was being maintained for  the entire Western Zone. The appellants were working  as   L.D.Cs.  in   Rajkot.  Admittedly,  they  were appointed as LDCs in the year 1964 while the appellants were appointed in  1969. The  Government issued a policy in which it was  stated that the respective Joint Chief Controller of Imports and  Exports in each Zone issued circulars from time to time wherein the relevant part reads that an LDC would be transferred on  promotion from one place to another but such promotion would be on ad hoc basis. If more persons than the number  of  vacancies  express  willingness  for  the  above promotion  then   the  senior-most   among  them   will   be

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considered.      In the  event of  the seniors  not  willing  to  go  on promotion, the  juniors who  accept the  promotion  will  be given seniority over their seniors who would not be willing. The initial  transfer on promotion in normal course would be on ad  hoc basis.  If more  than the required candidates opt for transfer  on promotion,  the senior  most would be given promotion in  the order  of seniority U.D.C. so far there is no controversy.  The area  of controversy arises when option was given but seniors did not opt to transfer but juniors to them  exercised   their  option   and  were   promoted   and transferred to  other places.  The question,  therefore,  is whether they  acquire right  to seniority  from the  date of promotion as  U.D.Cs.  or  would  they  have  to  await  the promotion of seniors in the normal course?      It  is  the  case  of  the  appellants  that  they  had expressed their  willingness to  be transferred on promotion as UDCs  from Ahmedabad  to other  places in  Western  Zone. Those offers were given to them in 1980 and their promotions came  to  be  made  accordingly.  According  to  them  their seniority should be counted from the date of promotion, i.e. in the  year 1980.  In 1981,  respondents 5  &  6  who  were working as  LDCs at  Rajkot were  given option  and they too exercised  their   option   for   transfer   on   promotion. Accordingly, they were promoted as UDCs and were transferred to Ahmedabad.  It is  their case  that  when  they  went  to Ahmedabad and  reported to  duty, they came to know that the appellants had  already  been  promoted  as  UDCs  and  were continuing as  such on  the above  basis. Consequently, they filed  a   writ  petition   in  the  High  Court  which  was transferred  to   the  CAT,   claiming  seniority  over  the appellants.      It is  seen that  the Tribunal had accepted the case of respondents 5  & 6  that  since  they  are  seniors  to  the appellants in  the cadre  as LDCs, the ad hoc promotion made to  the   appellants  as   UDCs  would  not  disentitle  the respondents to  claim their  seniority in  the cadre as UDCs though promoted later to the appellants. That principle came to be  accepted and  suitable directions  were given  in the impugned judgment  for preparation  of the seniority list on the basis of the above principle.      Shri  B.K.   Mehta,  learned  senior  counsel  for  the appellants, contended that since the appellants had accepted transfer on  promotion, though  on ad  hoc basis, in view of the aforestated  policy, their  promotion must be treated to be on  regular basis  and that,  therefore, their  seniority should be  counted from  the date  of transfer on promotion. Since respondents  5 &  6 were promoted in 1981, they cannot claim seniority over the appellants.      It is seen that in case senior LDCs were not willing to go on  transfer after promotion, though on ad hoc basis, and if the  juniors had  accepted  and  opted  for  transfer  on promotion, the  juniors would  get seniority  as  UDCs  over their seniors  in  the  LDC  cadre.  The  seniors  who  were obviously unwilling  for transfer on promotion, were willing to forgo  seniority as LDCs and that thereby the juniors who opted for  transfer on  promotion, scale  a march  over  the seniors in  the cadre  as promotees  UDCs.  The  aforestated circular would  give them  the said  right. This controversy was considered  by a  Division Bench  of the  Andhra Pradesh High Court  in W.A.  No.116/84, Joint  Chief  Controller  of Imports &  Exports, Madras  & Anr. v. V.V. Ramanarao & Ors., by order dated December 24, 1987, where it was held thus :      "The effect  of the unwillingness on the      part of  the senior  LDCs to  proceed on

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    transfer promotion  to Hyderabad as UDCs      resulted in their losing their seniority      in the category of LDCs in favour of the      tranferees."      After elaborate  consideration, the  Division Bench had held that the senior LDCs who were unwilling to go on ad hoc transfer as  UDCs would  be treated as having foregone their seniority in  favour of all their juniors who opted to go on such transfer  and thereby they become seniors to those LDCs who were unwilling for the transfer.      We find  that the  ratio is  quite consistent  with the circular issued by the Joint Chief Controller of Imports and Exports. Of  course, as  held by  the Tribunal,  it would be subject to  rule  of  reservation  and  fulfillment  of  the qualifications required  for the  posts as U.D.C. The reason would be  obvious that due to administrative exigencies when the options  were given  to the  senior UDCs for transfer on promotion though on ad hoc basis since they were not willing for  such   a  transfer  by  promotion,  the  administrative exigencies do  require that  the posts  need to be filled up from junior  L.D.Cs. who  had  exercised  their  option  for transfer by promotion as UDCs and get seniority in the cadre as UDCs  though in the cadre as LDCs they were juniors. They get seniority  from the  date  of  their  initial  promotion though on  ad hoc basis. When they were regularly working as UDCs in  existing vacancies,  obviously promotion  would  be given according  to rules consistent with rule of seniority- cum-fitness and following the rule of reservation. Promotion thereby given  would be  treated according  to rules, though initially made on ad hoc basis. Thus the juniors would scale a march  over senior LDCs who were unwilling for transfer by promotion.      In this  case, respondents  5 & 6 had stated before the Tribunal and  they have  also reiterated in the counter sent through post to this Court that for the first time they were given option in 1981 for transfer on promotion and that they exercised the  option. Consequently,  they were  promoted as UDCs and  were transferred  on promotion  to Ahmedabad. Thus considered, when  the appellants  were promoted  in the year 1980, they  were not  informed of  the right to exercise the option for  transfer on  promotion nor  they refused to give option on  that basis.  Since they admittedly are seniors to the appellants as LDCs in the absence of their refusal, they cannot be  made to lose their seniority in the cadre as UDCs for no  fault of  theirs merely  because the appellants were promoted in  1980 overlooking  the claims of respondents 5 & 6. Accordingly, on facts, we do not think that the direction issued by the Tribunal is illegal.      The appeal  is  accordingly  dismissed  and  the  Joint Controller  of   Imports  and  Exports,  Western  Zone  will determine the  seniority by  following the above principles, circulate  the   same  to   all  the  candidates  and  after considering their  objections, if  any,  will  finalise  the seniority list  according to  rules and  should take  action according to law. No costs.