REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8017 OF 2003 UNION OF INDIA & ORS. … APPELLANTS

VERSUS

DEO NARAIN & ORS. …  RESPONDENTS

J U D G M E N T C.K. THAKKER, J.

1. The  present  appeal  is  filed  by  the

Union of India & Ors. against the judgment and

order  passed  by  the  High  Court  of  Delhi  on

January 30, 2002 in Civil Writ Petition No.

6281 of 1999. By the said judgment, the High

Court confirmed the judgment and order dated

April  30,  1999  passed  by  the  Central

Administrative  Tribunal,  Delhi  (‘CAT’  for

short)  in  Original  Application  No.  2146  of

1998.

2. To appreciate the issue raised in the

present  appeal,  few  relevant  facts  may  be

noted.

3. The  respondents  herein  (applicants

before CAT) filed Original Application against

the action of the Central Excise and Customs

Department of not considering their cases for

promotion to the post of Upper Division Clerk

(‘UDC’  for  short)  from  the  post  of  Lower

Division Clerk (‘LDC’ for short). According to

the  applicants,  they  joined  service  in  the

Office of Central Board of Excise and Customs,

Department of Revenue as LDCs. Applicant No.1

Deo Narain joined as LDC on June 11, 1962 (sic

1982). Applicant No. 2 Bijender Singh joined on

September 9, 1986. Applicant No. 3-Nandan Singh

joined on May 5, 1988 whereas applicant No.4-

Ram  Kishan  joined  on  March  17,  1987.  In

accordance  with  the  policy  of  Inter-

Collectorate  Transfers,  they  got  themselves

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transferred to Meerut Collectorate. Consequent

upon their transfer, they lost their seniority

which they were having in the parent Department

i.e.  the Department where they were serving.

They were placed at the bottom of the seniority

list in the new Department at Meerut under the

relevant rules and policy decisions. In view of

their relatively lower position in the combined

seniority  list  of  LDCs,  the  applicants  and

other similarly placed LDCs in the seniority

list,  did  not  come  within  the  zone  of

consideration  for  promotion  to  the  post  of

Upper Division Clerk (UDC) in the year 1997-98.

Hence,  when  the  Departmental  Promotion

Committee (DPC) met for consideration of cases

for promotion of LDCs as UDCs, in the light of

position  of  the  applicants  in  the  combined

seniority list, they were not included in the

zone of consideration. Their cases, therefore,

were not considered.

4. The applicants, hence, approached the

CAT by filing Original Application challenging

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the action of their non-consideration and non-

promotion from the post of LDC to the post of

UDC on the ground of their placement in the

seniority list. They contended that they had

completed requisite service as LDC and their

cases, therefore, ought to have been considered

by DPC. Non consideration of their service on

the  basis  of  their  position  in  combined

seniority  list  was  illegal,  arbitrary  and

irrational. A relief was, therefore, sought to

direct the authorities to consider the cases of

the applicants for promotion to the post of UDC

from the post of LDC.

5. The  CAT, vide its order dated April

13, 1999 allowed the application, directed the

authorities to convene DPC for the year 1997

and consider the cases of the applicants as

eligible LDCs for promotion to the post of UDC

in accordance with law by taking into account

their  past  regular  service  rendered  as  LDCs

before  their  transfer  to  Commissionerate,

Meerut. It also directed to take such action

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within a period of three months from the date

of receipt of the copy of the order.

6. The appellants herein, being aggrieved

by the said order, approached the High Court by

filing a writ petition which as stated above,

came to be dismissed by the High Court holding

that there was no ‘merit’ in the petition and

the order passed and direction issued by the

CAT could not be said to be illegal or contrary

to law.

7. The above orders are challenged by the

authorities in the present appeal.

8. On  May  6,  2003,  the  Special  Leave

Petition  was  placed  for  admission  hearing.

Notice was issued. On September 22, 2003, delay

was condoned and leave was granted. By an order

passed by a Bench headed by the Hon’ble the

Chief Justice of India, the appeal was ordered

to  be  placed  for  final  hearing  in  summer

vacation and that is how the matter has been

placed before us.

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9. We have heard learned counsel for the

parties.

10. The learned counsel for the appellants

strenuously contended that the CAT as also the

High  Court  committed  an  error  of  law  in

allowing the claim of the applicants and in

directing  the  authorities  to  consider  their

cases for promotion to the post of UDC from the

post of LDC. According to the counsel, when the

applicants  were  transferred  to  another

Collectorate,  they  had  foregone  their

seniority.  It  was  in  accordance  with  the

Instructions issued by the Government of India.

It  was  expressly  stated  that  in  the  new

Collectorate, where they were transferred, they

would be placed at the bottom of the seniority

list below all LDCs who were working at that

time. With open eyes, the applicants accepted

the  said  condition  and  joined  the  new

Collectorate at Meerut. It was thereafter not

open to the applicants to challenge the said

action. Again, there was gross delay and laches

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on the part of applicants in challenging such

action.  They  were  transferred  in  1992.  The

Departmental  Promotion  Committee  (DPC)

considered the cases of LDCs for promotion as

UDCs in 1997. Till then, applicants did not

take  any  action.  They  filed  Original

Application in September, 1998. Therefore, even

on the ground of delay, the CAT ought not to

have entertained the application and ought to

have dismissed it.

11. According  to  the  counsel,  even  on

merits, the applicants had no case. According

to the counsel, what weighed with the CAT as

also the High Court was that in accordance with

law, past services of applicants could not be

ignored. The counsel submitted that, to that

extent, the applicants were right and the CAT

and  the  High  Court  had  not  committed  any

mistake in treating applicants as eligible and

qualified for consideration to the post of UDC

from the post of LDC. According to the counsel,

however, the CAT and the High Court went wrong

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in  equating  eligibility with  seniority.  Two

things,  namely,  (i)  eligibility,  and  (ii)

seniority  are  quite  different  and  distinct.

Even if an employee is eligible and qualified,

it does not necessarily mean that his case must

be considered irrespective of his position in

the seniority list. Fixation or retention of

seniority depends upon the provisions of the

Act,  Rules or  Administrative Instructions  in

force. In the case on hand, it was provided

that  on  transfer  from  one  Collectorate  to

another Collectorate, such transferee employees

would  retain  their  requisite  service  as

experience for the purpose of consideration of

eligibility  and  qualification.  But  it  was

specifically  stated  that  in  the  new

Directorate, they will be placed at the bottom

and below all existing LDCs. The counsel stated

that for considering cases of eligible LDCs as

UDCs,  there  is  a  zone  of  consideration  and

keeping in view lower position of applicants

who were transferees, they did not come within

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the said zone and hence their cases could not

be considered. The said action was, according

to  the  counsel,  perfectly  legal  and  wholly

justified and the CAT and the High Court were

wrong in granting relief to the applicants. The

order passed by the CAT and confirmed by the

High  Court,  therefore,  deserves  to  be  set

aside.

12. The learned counsel for the contesting

respondents, on the other hand, supported the

order passed by the CAT and confirmed by the

High Court. It was submitted that once it is

said that the transferee LDCs would not lose

their past service, necessary corollary would

be that they would be treated as appointed as

LDCs  the  date  they  joined  service  and

thereafter it was not open to the authorities

to ignore their claim on the ground that their

placement was at the bottom of the seniority

list  of  the  Collectorate  where  they  were

transferred and placed below other LDCs since

they  had  foregone  their  seniority.  Such  an

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action, according to the counsel, is arbitrary,

irrational, discriminatory and violative under

Articles 14 and 16 of the Constitution. It is

also unreasonable and infringing Article 19 of

the  Constitution. The  counsel also  submitted

that  when  the  applicants  were  otherwise

eligible and qualified, no power of relaxation

of eligibility could have been exercised by the

Government in favour of ineligible LDCs. The

CAT  and  the  High  Court  were,  therefore,

justified  in  granting  the  relief  and  no

interference  is  called  for  in  exercise  of

discretionary jurisdiction under Article 136 of

the Constitution. A prayer is, therefore, made

to dismiss the appeal.

13. Having given our anxious consideration

to the rival contentions of the parties, in our

opinion, the appeal deserves to be allowed.

14. In exercise of powers conferred under

the proviso to Article 309 of the Constitution,

the President of India framed rules regulating

the method of recruitment to Group C posts in

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the Central Excise and Land Customs Department

known as “the Central Excise and Land Customs

Department  Group  C  Posts  Recruitment  Rules,

1979”.  Procedure  of  recruitment,  age  limit,

qualifications, relaxation, etc. have also been

laid down in the Rules. Appointment as Upper

Division  Clerk  (UDC)  is  to  be  made,  inter

alia,  on  promotion  from  the  post  of  Lower

Division  Clerk  (LDC)  with  seven  years

experience.

15. ‘Note’ to the Rules reads as under:

    “If a junior person is considered for  promotion  on  the  basis  of  his completing  the  prescribed  qualifying period of service in that grade, all persons  senior  to  him  in  the  grade shall also be considered for promotion notwithstanding that they may not have rendered  the  prescribed  qualifying period  of service in that grade but have  completed  successfully  the prescribed period of probation”.

16. The  Rules  also  provide  for

Departmental  Promotion  Committee  (DPC)  and

consideration of cases of eligible candidates.

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17. By a communication dated May 20, 1980,

the  Government  of  India,  Central  Board  of

Excise and Customs informed all Collectors of

Central Excise for consideration of cases of

transferee  employees.  It  was  stated  that

transfer of all Group ‘C’ officers from one

Collectorate  to  another  Collectorate  having

separate cadres were allowed on compassionate

ground with the approval of the Commissioner

subject  to  certain  conditions.  It  was  then

stated  that  requests  received  for  inter-

Collectorate transfers from Group ‘C’ officers

on  genuine  compassionate  grounds  can  be

considered  on  merits.  It  was  also  expressly

provided  that  such  transfers  wherever

considered necessary, should be effected on the

conditions laid down in the said letter.

18. Condition (ii) which is relevant for

the purpose of present controversy, reads as

under:

(ii) The  transferee  will  not  be entitled  to  count  the  service

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rendered  by him in the former Collectorate for the purpose of seniority in the new charge. In other words, he will be treated as  a  new  entrant  in  the Collectorate  to  which  he  is transferred and will be placed at the bottom of the list of the temporary  employees  of  the concerned  cadre  in  the  new charge.      (emphasis supplied)

19. In para 3 it was stated;

 “A written undertaking to abide by the requisite terms and conditions may be obtained from the employees seeking transfers  before  the  transfers  are actually effected”.

20. It is thus clear that as early as in

1980,  a  policy  decision  was  taken  by  the

appellants that in certain circumstances, LDCs

could be transferred from one Collectorate to

another  Collectorate  purely  on  compassionate

grounds. But, it was also provided that such

transferee would not be entitled to count the

service  rendered  by  him/her  in  the  former

Collectorate for the purpose of  seniority  in

the  new  Collectorate.  In  other  words,  such

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transferee would be treated as  new entrant in

the Collectorate in which he/she is transferred

and will be placed at the bottom of the list of

temporary employees of the cadre in the new

charge.

21. From the above policy decision, it is

abundantly  clear  and  there  is  no  doubt

whatsoever that when any LDC working in one

Collectorate  seeks  transfer  to  another

Collectorate on compassionate ground, the said

action  can  only  be  taken  on  the  terms  and

conditions of the decision of the Government of

India, dated May 20, 1980. In that case, he/she

will not be entitled to get his/her service

rendered  in  the  former  Collectorate  to  be

counted for the purpose of seniority and will

be  placed  at  the  bottom  of  the  list  of

employees in the transferred Collectorate.

22. It is an admitted fact that in 1992,

the  applicants got  themselves transferred  to

Meerut and they had, in consonance with the

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policy decision of May 20, 1980, foregone their

seniority in the Collectorate where they were

working and were placed at the bottom of the

seniority list of the Meerut Collectorate where

they were transferred. In view of the above

fact and legal position, in our opinion, the

contention of the appellants that placement of

the respondents at the bottom of the seniority

list in the transferee Collectorate was legal

and valid is well founded and in consonance

with the decision of the Central Government.

There was no infirmity in the said order and it

ought not to have been disturbed.

23. The CAT, however, allowed the Original

Application  relying  upon  a  decision  of  this

Court  in  Union  of  India  &  Ors.   v.  C.N.

Ponnappan, (1996) 1 SCC 524. In Ponnappan, the

question  before  this  Court  was  whether  an

employee who was transferred from one Unit to

another Unit on compassionate ground and as a

result thereof has been placed at the bottom of

the seniority list, could have his service in

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the  earlier  Unit  from  where  he  had  been

transferred,  counted  as  experience  for  the

purpose of promotion in the Unit where he was

transferred. 24. This  Court  noted  that  there  was

cleavage of opinion amongst Benches of Central

Administrative Tribunal (CAT) on the question.

Whereas, the Madras Bench in C.N. Ponnappan v.

Union  of  India,  (1987)  5  ATC  766  (Mad)  had

taken  the  view  that  though  on  transfer  on

compassionate grounds, the employee would lose

his seniority and would be placed at the bottom

of the seniority list at the transferred place,

for  the  purpose  of  promotion,  his  earlier

service  in  the  Unit  from  where  he  was

transferred, would not be wiped out and the

said service would be treated as ‘experience’

for  eligibility  for  promotion  and  if  he  is

found eligible, then his case for promotion has

to be considered on the basis of seniority ‘at

the  transferred  place’.  [See  also  K.A.

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Balasubramaniam v. Union of India, (1987) 4 ATC

805 (Mad) (FB)]. 25. The Bangalore Bench of the CAT, on the

other  hand, in  S.  Abdul  Khayum  v.  Union  of

India,  (1987) 1 SLJ (CAT) 131 (Bang) did not

agree with the above view of Madras Bench and

held that an employee who was transferred on

compassionate  ground  and  was  placed  at  the

bottom of the seniority list at the place where

he was transferred, could not have his earlier

service  at  the  place  from  where  he  was

transferred,  counted as  ‘experience’ for  the

purpose of eligibility for promotion.

26. This  Court  considered  conflicting

views and held that the service rendered by an

employee at one place could not be ignored or

not counted for the purpose of promotion to

another Unit even if such transfer is made on

compassionate ground. He can be placed at the

bottom  of  the  seniority  at  the  transferred

place, but the experience obtained by him of

rendering service in the first Department could

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not  be  ignored  and  must  be  considered  as

experience for promotion in the new Unit also.

27. In para 4, the Court stated; “4.  The  service  rendered  by  an employee at the place from where he was  transferred  on  compassionate grounds is regular service. It is no different from the service rendered at  the  place  where  he  is transferred.  Both  the  periods  are taken into account for the purpose of leave and retiral benefits. The fact that as a result of transfer he is  placed  at  the  bottom  of  the seniority  list  at  the  place  of transfer  does  not  wipe  out  his service at the place from where he was  transferred.  The  said  service, being regular service in the grade, has to taken into account as part of his  experience  for  the  purpose  of eligibility  for  promotion  and  it cannot be ignored only on the ground that  it  was  not  rendered  at  the place where he has been transferred. In  our  opinion,  the  Tribunal  has rightly held that  the service held at the place from where the employee has  been  transferred  has  to  be counted  as  experience  for  the purpose of eligibility for promotion at  the  place  where  he  has  been transferred”.    (emphasis supplied)

28. We  are unable to understand how the

CAT read this judgment as giving benefit of

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seniority to the transferred employee in the

transferee  Department over  the employees  who

were  very  much  there.  In  our  considered

opinion,  the  direction  in  the  judgment  is

abundantly  clear  which  draws  distinction

between  ‘experience’ on  the  one  hand  and

‘seniority’ on the other hand. What was held in

Ponnappan by this Court was that if an employee

is transferred from one Department to another

Department on compassionate ground, he would be

placed at the bottom of the seniority in the

transferee Department. Hence, at the time of

his transfer in the transferee Department, all

employees in the same cadre who were very much

serving at that time would be shown above such

transferee  employee  and  in  such  combined

seniority list, the transferred employee would

be shown as junior most. The only thing which

this Court said and with respect, rightly is

that such employee who had already worked in a

particular  cadre and  gained experience,  will

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not lose past service and experience for the

purpose  of  considering  eligibility when  his

case  comes  up  for  consideration  for  further

promotion. 29. In our judgment, the ratio laid down

by this Court in  Ponnappan clearly lays down

the principle formulated in the Government of

India’s letter dated May 20, 1980 as also in a

subsequent  communication, dated  May 23,  1997

issued by the Ministry of Finance, Department

of Revenue. Even otherwise, in our considered

opinion,  the  two  concepts,  viz.  (i)

‘eligibility’  and (ii)  ‘seniority’  are  quite

distinct,  different  and  independent  of  each

other.  A  person  may  be  eligible,  fit  or

qualified to be considered for promotion. It

does  not,  however,  necessarily  mean  that  he

must be treated as having requisite ‘seniority’

for entry in the zone of consideration. Even if

he fulfils the first requirement, but does not

come within the zone of consideration in the

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light  of  his  position  and  placement  in

‘seniority’ and the second conditions is not

fulfilled, he cannot claim consideration merely

on  the  basis  of  his  eligibility  or

qualification.  It  is  only  at  the  time  when

‘seniority’ cases of other employees similarly

placed are considered that his case must also

be considered. The CAT, in our view, therefore,

was  not  right  in  applying  Ponnappan  and  in

granting relief to the applicants. There is no

doubt in our mind that it says to the contrary. 30. Our attention was also invited to Renu

Mullick (Smt) v. Union of India & Anr., (1994)

1 SCC 373. In Renu Mullick, the appellant was

appointed as LDC in Central Excise and Customs,

New  Delhi  on  December  17,  1974.  She  was

promoted as UDC on May 10, 1985. Then, on her

own request, she was transferred to the Central

Excise Collectorate, Allahabad where she joined

on August 4, 1987. She gave an undertaking that

on unilateral transfer, her seniority may be

“fixed  below  the  last  temporary  UDC  in  the

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Allahabad  Collectorate”  i.e. she  might  be

“treated as a fresh entrant in the cadre of

UDC”, at Allahabad. 31. In 1991, she was initially promoted as

Inspector but later on reverted on the ground

that  she  did  not  fulfill  the  eligibility

conditions  laid  down  in  Rule  4  for  the

recruitment  which  required  experience  of  a

particular period. According to the Department,

since she was considered as fresh entrant, she

had  not  completed  the  requisite  service  and

having necessary experience and was, therefore,

not  eligible  for  promotion  to  the  post  of

Inspector.

32. This  Court  held  that  the  Department

was not right. According to the Court, even if

the  employee  sought  unilateral  transfer  by

agreeing  to  be  placed  at  the  bottom  of

seniority list in the transferee Department, it

would not wipe out the services rendered by

such  employee.  In  other  words,  according  to

this  Court,  an  employee  who  is  otherwise

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eligible, would not become ineligible, merely

on  the  ground  of  voluntary  or  unilateral

transfer.

33. The Court stated; “10.  We  are  of  the  view  that  the Tribunal  fell  into  patent  error  in dismissing  the  application  of  the appellant.  A bare reading of para 2 (ii)  of  the  executive  instructions dated  May  20,  1980  shows  that  the transferee  is  not  entitled  to  count the service rendered by him/her in the former collectorate for the purpose of seniority in the new charge. The later part  of  that  para  cannot  be  read differently. The transferee is to be treated  as  a  new  entrant  in  the collectorate  to  which  he  is transferred  for  the  purpose  of seniority. It means that the appellant would  come  up  for  consideration  for promotion  as  per  her  turn  in  the seniority list in the transferee unit and only if she has put in two years' service  in the category of UDC. But when  she is so considered, her past service  in  the  previous  collectorate cannot be ignored for the purposes of determining  her  eligibility  as  per Rule 4 aforesaid. Her seniority in the previous  collectorate  is  taken  away for  the  purpose  of  counting  her seniority in the new charge but that has  no  relevance  for  judging  her eligibility for promotion under Rule 4 which  is  a  statutory  rule.  The eligibility for promotion has to be, determined  with  reference  to  Rule  4 alone,  which  prescribes  the  criteria

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for eligibility. There is no other way of  reading  the  instructions aforementioned.  If  the  instructions are  read  the  way  the  Tribunal  has done, it may be open to challenge on the ground of arbitrariness.

11.  The  provisions  of  the  rules reproduced above lay down that a UDC with  five years service or UDC with thirteen years of total service as UDC and LDC taken together subject to the condition that he should have put in a minimum of two years of service in the grade  of  UDC,  is  eligible  to  be considered for promotion to the post of  Inspector.  The  rule  nowhere  lays down than five years or thirteen years have to be spent in one collectorate. There is no indication, whatsoever, in the  rule that the service period of five years and thirteen years is not applicable to an officer who has been transferred  from  one  collectorate  to another  on  his  own  request.  On  the plain  language  of  the  rule  the appellant,  having  served  the department for more than five years as UDC and also having completed thirteen years composite service as UDC and LDC including two years minimum service as UDC, was eligible to be considered for promotion  to  the  post  of  Inspector. The Tribunal failed to appreciate the elementary rules of interpretation and fell into patent error in non-suiting the appellant”.

34. In  our  opinion,  Renu  Mullick  also

supports  the  view  which  we  are  inclined  to

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take,  namely,  that  an  employee  who  is

transferred to other Collectorate does not lose

his/her  past  service  for  the  purpose  of

considering his/her eligibility. But, if such

transfer  is  voluntary  or  unilateral  on

condition that he/she will be placed at the

bottom of the seniority list in the transferee

Department,  the  said  condition  would  bind

him/her and he/she cannot claim seniority over

the employees in the transferee Department. 35. Finally,  in  Scientific  Advisor  to

Raksha Mantri & Anr. v. V.M. Joseph, (1998) 5

SCC 305, again, a similar view has been taken

by  this  Court.  It  was  held  that  if  the

eligibility condition requires certain length

of  service,  service  rendered  in  another

organization before unilateral transfer at own

request cannot be counted for the purpose of

seniority.  But  it  must  be  counted  for

determining eligibility for promotion. 36. Referring to and relying on Ponnappan,

this Court stated;

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   “From the facts set out above, it will be seen that promotion was denied to  the  respondent  on  the  post  of Senior Store Keeper on the ground that he  had  completed  three  years  of regular service as Store keeper on 7th June, 1980 and therefore, he could not be  promoted  earlier  than  1980.  In coming  to  this  conclusion,  the appellants  excluded  the  period  of service rendered by the respondent in the Central Ordnance Depot, Pune, as a Store Keeper for the period from 27th April,  1971  to  6th  June,  1977.  The appellants  contended  that,  since  the respondent  had  been  transferred  on compassionate  ground,  on  his  own request to the post of Store Keeper at Cochin and was placed at the bottom of the  Seniority  list,  the  period  of three years of regular service can be treated to commence only from the date on which he was transferred to Cochin. This is obviously fallacious inasmuch as the respondent had already acquired the status of a permanent employee at Pune where he had rendered more than three  years  of  service  as  a  Store Keeper.  Even  if  an  employee  is transferred at his own request, from one  place  to  another,  on  the  same post, the period of service rendered by him at the earlier place where he held a permanent post and had acquired permanent  status,  cannot  be  excluded from consideration for determining his eligibility  for  promotion,  though  he may have been placed at the bottom of the seniority list at the transferred place.  Eligibility  for  promotion cannot be confused with seniority as

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they  are  two  different  and  distinct factors”.   (emphasis supplied)

37. The  CAT  in  para  4  of  the  judgment,

observed as under;

“4. The  respondents  in  their  reply have  submitted  that  the  applicants have  been  transferred  from  other departments  to  the  Central  Excise, Commissionerate,  Meerut  on  Inter Department  transfer  basis  in  1992. They have relied on their Ministry’s instructions dated 20.5.1980 and have submitted  that  the  applicants  have lost  their  seniority  in  the  parent department in the grade of their inter departmental  transfer  from  other Commissionerates  to  the  Central Excise,  Commissionerate,  Meerut  and have been placed at the bottom of the seniority list of the LDCs of Combined Central  Excise  Commissionerate, Kanpur/Allahabad/Meerut.  They  have stated that the applicants have worked as  LDCs between four to eight years prior  to  joining  in  Meerut Commissionerate. As they are placed at bottom in the Seniority list of LDCs they  have  submitted  that  the applicants  have  no  claim  over  and above the officials senior to them and they  will be duly considered as and when their turn comes for promotion as per  their  seniority  in  the  combined cadre  of  Allahabad/Kanpur/Meerut Commissionerate”.

38. The CAT then concluded;

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   “In the result, this application is allowed with the directions to the respondents to convene review DPC for the  year  1997,  and  consider  the eligible  LDCs  for  promotion  to  the post  of UDCs in accordance with the principles  laid  down  by  the  Supreme Court by taking into consideration the period of their past regular service rendered as LDCs before their transfer to  another  Commissionerate.  In  the circumstances,  any  relaxation  of  the Rules to consider the senior persons who  do  not  have  the  eligibility conditions of seven years as laid down in  the  relevant  recruitment  Rules cannot  be  resorted  to  by  the respondents when there are sufficient number  of  other  persons  who  may  be junior  but,  however,  fulfill  the eligibility  conditions  prescribed  in the Rules. This action shall be taken within three months from the date of receipt of a copy of this order. No order as to costs”.

39. As  already  discussed  hereinabove,  in

our opinion, the CAT was not right in allowing

the application and issuing directions to the

Department.

40. When the appellants herein approached

the High Court, the High Court observed;

   “The fact of the matter is not in dispute.  In  the  year  1992,  the respondents joined the offices of the petitioners  as  lower  division  clerks

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on different dates in 1992 on inter- departmental transfers. Admittedly, in terms  of  the  existent  rules, consequent  upon  their  transfer,  they had  foregone  their  respective seniority  in  their  departments  and they were placed at the bottom of the seniority list. On or about 23rd May 1997,  the  Ministry  of  Finance, Department  of  Revenue  issued instructions  to  all  Commissionrates under the Central Board of Excise and Customs  that  an  officer  on  transfer form  one  Commissionerate  to  another would be entitled to get the benefit of his past service for the purpose of promotion although his seniority shall be  retained  at  the  bottom  of  the transferred Commissionerate”.

     (emphasis supplied)

41. Referring  to  Renu  Mullick,  the  High

Court observed that “it is not in dispute that the persons on voluntary transfer, would lose

their seniority but the same by itself would

not  mean  that  their  entire  past  service  is

wiped off. For the purpose of consideration of

their cases for promotion, their past service

is required to be taken into consideration”. 42. We  are  in  agreement  with  the  High

Court. Renu Mullick and other cases referred to

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by us, clearly lay down the above proposition

of law that even if the transfer is voluntary

and  unilateral,  services  rendered  by  an

employee would not be wiped off for considering

eligibility for promotion to the higher cadre.

43. The  High  Court  then  proceeded  to

observe that there was no bar in considering

the cases of the applicants for promotion. The

Court observed that though there were LDCs who

were senior to the applicants but they were not

eligible to be appointed as UDCs and hence, the

applicants were entitled to be considered for

promotional post of UDCs.  

44. In our considered opinion, there the

High Court was not right. The statutory rules

referred  to  above,  empower  the  Central

Government  to  relax  the  provisions  of  the

Rules. In exercise of the said power under Rule

7 of the Rules, the Central Government relaxed

eligibility condition. Such action, therefore,

cannot be held illegal or unlawful and could

not have been interfered with by the CAT or by

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the High Court. Moreover, the applicants opted

for voluntary and unilateral transfer foregoing

their seniority and joined Meerut Collectorate

with open eyes and were placed below all LDCs

who were serving in the said Collectorate. It

was,  therefore,  not  open  to  them  to  make

grievance  if  LDCs  shown  above  them  in  the

seniority list are considered for promotion to

the cadre of LDC.  Thus, neither law nor equity

supports the so-called claim of the applicants.

45. For the foregoing reasons, the appeal

is  allowed.  The  order  passed  by  the  CAT  on

April 13, 1999 in O.A. No. 2146 of 1998 titled

Deo Narain & Ors. v. Union of India & Ors. and

confirmed by the High Court on January 30, 2002

in  C.W.P. No.  6281 of  1999 titled  Union  of

India v. Deo Narain & Ors. is set aside and the

original application filed by the applicants-

respondents herein is ordered to be dismissed.

46. On the facts and in the circumstances

of the case, however, there shall be no order

as to costs.

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47. Ordered accordingly.

……………………………………………………………J. (C.K. THAKKER)

NEW DELHI, ……………………………………………………………J. SEPTEMBER 15, 2008. (LOKESHWAR SINGH PANTA)

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