Holding

The service rendered in the former collectorate, though not counted for seniority, must be considered for promotion eligibility under Rule 4, rendering the reversion order illegal.

Summary

Ms. Renu Mullick joined the Central Excise and Customs as a Lower Division Clerk in 1974, was promoted to Upper Division Clerk, and on her own request transferred to the Allahabad Collectorate in 1987 where she was placed at the bottom of the seniority list as per the 1980 executive instructions. In 1991 she was promoted to Inspector under Rule 4 of the 1979 Group ‘C’ Posts Recruitment Rules, which requires five years as a UDC or thirteen years composite service with at least two years as a UDC. The Department later issued an order in February 1992 reverting her to Tax Assistant without assigning any reason, and she challenged the order before the Central Administrative Tribunal, which upheld the reversion on the ground that her prior service was wiped out for all purposes. The Supreme Court held that the executive instructions only affect seniority for the new charge and do not preclude counting her total service for promotion eligibility under the statutory rule. Consequently, the reversion order was quashed, the appeal was allowed, and Ms. Mullick was ordered to be deemed to have continued as Inspector with back wages and interest.

Issues considered

Whether service rendered in a former collectorate, excluded for seniority under the 1980 executive instructions, can also be excluded for determining eligibility for promotion under Rule 4 of the 1979 Group ‘C’ Posts Recruitment Rules.
Whether the reversion order dated 20 February 1992 was valid in light of the appellant's eligibility for promotion.
Interpretation of para 2(ii) of the executive instructions concerning seniority and its impact on promotion criteria.

Subjects

service seniorityinter-collectorate transferpromotion eligibilityCentral Excise and CustomsGroup C postsexecutive instructions interpretationreversion orderadministrative law

Judgment

SMT. RENU MULLICK A
v.
UNION OF INDIA AND ANR.

NOVEMBER 19, 1993

[KULDIP SINGH AND B.P. JEEVAN REDOY, JJ.] B

Se111ice law-Central Board of ExciJe and Cu_stoms-lnter-Collectorate
Trans/erS"-Executive instntctions regarding-Interpretations of.

Central Excise and Land Custom~epartment Group 'C' Posts C
Recruitment Rules, 1979 : Rule ~Schedule-:-Interpretation of.

Under the executive instructions dated May 20, 1980, issued by the
Central Board of Excise and Customs, a group 'C' Officer, when transferred
on his own request from one Collectorate to another was not entitled to
count the service rendered by him in the former Collectorate for the pur- D
pose of seniority in the new charge i.e. he was to be treated as a new entrant
in the Collectorate to which he was transferred and was to be placed at the
bottom of the list of the employees of the concerned cadre in the new charge.

The appellant, who joined the Directorate of Statistics and Intel-
ligence, Central Excise and Customs, New Delhi on 17th December 1974 E
as Lower Division Clerk and was promoted as Upper Division Clerk on
May 10, 1981, was transferred, on her oWll request, to Excise Collectorate,
Allahabad by an order dated July 30, 1987 which she joined as Upper
Division Clerk on August 4, 1987. In November, 1989, she was promoted
as Inspector in accordance with the Central Excise and Land Cdstoms p
Department Group 'C' Posts Recruitment Rules, 1979, under which a
U.D.C. with S years service or U.D.C. with 13 years of total service as
U.D.C. and L.D.C. taken together subject to the condition that he should
have put in a minimum of two years of service in the grade of U.D.C., was
eligible to be considered for promotion. However, by an order dated
February 20, 1992, she was reverted from the post of Inspector. She . G
challenged the reversion order before Central Administrative Tribunal,
Allahabad. The Tribunal upheld the reversion order and accepted the
respondent-Union of India's stand that on transfer the service rendered
by her at Delhi was wiped off for all purposes including determination of
her eligibility for promotion to the post of Inspector. Against the decision H
825
826 SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R.

A of the Tribunal, appeal was filed in this Court.
Allowing the appeal and setting aside the judgment of the Tribunal,
this Court,

HELD : 1. The Tribunal failed to appreciate the elementary rules of
B interpretation and fell into patent error in non-suiting the appellant.
(830-F]
2. 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 in the former Collectorate for the purpose of seniority in
C 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. The seniority in the previous
Collectorate is taken away for the purpose of counting the seniority in the
new charge but that has no relevance for judging eligibility for promotion
D under a statutory rule. The eligibility for promotion has to be determined
with reference to Rule 4 alone, which prescribes the criteria for eligibility.
There is no other way of reading the instructions. If the instructions are
read the way the Tribunal has done, it may be open to challenge on the
ground of arbitrariness. (829-G-H, 830-A·C]

E 3. There is no indication, whatsoever in Rule 4 of the Central Excise
and Land Customs Department Group 'C' Posts Recruitment Rules, 1979
that the service period of 5 years and 13 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 5 years as U.D.C. and also having completed 13
F years composite service as U.D.C. and L.D.C. including two years mini·
mum service as U.D.C., was eligible to be considered for promotion to the
post of Inspector. The order reverting the appellant, from the post of
Inspector to the post of Tax Assistant is quashed. [830·D·E]

G CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7143 of
1993.

From the Judgment and Order dated 1.6.92 of the Central Ad-
ministrative Tribunal, Allahabad in 0.A. No. 297 of 1992.

H H.K. Puri, Sunil Gupta and J.S. Bey for the Appellant.
."
SMT: RENU v. U.0.1. [KULDIP SINGH, J.] 827

V.R. Reddy Additional Solicitor General, Pradcep Jain and P.Par- A
meshwaran for the Respondents.

The Judgment of the Court was delivered by

KULDIP SINGH, J. Special leave granted.
B
According to the executive instructions dated May 20, 1980, issued
by the Central Board of Excise and Customs, a Group 'C' Officer, when
transferred on his own request, from one Central Excise Collectorate to
another, is not entitled to count the service rendered by him in the former
Collectorate for the purpose of sorority in the new charge. The question
for our consideration is whether the said officer is further deprived of the C
said service even for determining his eligibility for promotion to the higher
cadre. The Central Administrative Tribunal, Allahabad Bench, has
answered the question in the affirmative. This appeal by way of special
leave is against the judgment of the Tribunal.

Renu Mullick, the appellant, joined service in the Directorate of
D
Statistics and Intelligence, Central Excise and Customs, New Delhi on
December 17, 1974 as Lower Division Cleark (LDC). She was promoted
to the post of Upper Division Clerk (UDC) on May 10, 1981. She was
transferred, on her own request, to Allahabad by the Order dated July 30,
1987, a.nd she joined as UDC on August 4, 1987 in the Central Excise E
Collectorate at Allahabad.

Executive instructions dated May 20, 1980, issued by the Central
Board of Excise and Customs provide for inter collectorate transfers on
the conditions specified therein. The relevant conditions in para 2(ii) and
para 3 are as un.der : - F

"2 (ii). The transferee will not be entitled to count the service
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 G
will be placed at the bottom of the list of the temporary employees
of the concerned cadre in the new charge;

3. 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." H
828 SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R ..

A The appellant gave the necessary undertaking in the following words:

"I hereby agree to and undertake to comply with the conditions
detailed below :
.•
1. My seniority will be fixed below the last temporary U.D.C.
B in the Allahabad Collectorate, i.e. I will be treated as a fresh
entrant in the cadre of U.D.C. in the new charge.

2. No transfer, travelling allowance and joining time etc., will
be admissible to me as a result of this transfer.

c 3. I will not be considered for further confirmation and promo-
tion in the Directorate of S & I. Central Excise and Customs, New
Delhi.

I will be adjusted against a direct recruit and unreserved
vacancy in the grade of U.D.C."
D
It is not disputed that on joining Central Excise collectorate, Al-
lahabad, the appellant was. placed at the bottom of the seniority list in
accordance with the government instructions quoted above. The appellant
does not make grievance about the fixation of her seniority in the new
E charge at Allahabad.

In the year 1991, the appellant along with several other UDCs was
considered for promotion to the post of Inspector by the Departmental
Promotion Committee in accordance with the Central Excise and Land
Customs Department Group 'C' Posts Recruitment Rules 1979 (the rules).
F Rule 4 read with the Schedule to the rules lays down the eligibility
qualifications for promotion to the post of Inspector. The relevant extract
is reproduced hereunder : -

"Inspector: Promotion by selection from U.D.C. with 5 years service
or U.D.C. with 13 year of total service as U.D.C. and L.D.C. taken
G
together subject to the condition that they have put in a minimum
of two years of serve in the grade of U.D.C................................ .

Note 3 : If a junior person is considered for promotion on
the basis of his completing the prescribed qualifying period
H of service in that grade, all persons senior to him in the grade
SMT. RENU v. U.O.L [KULDIP SINGH, J.] 829
.... shall also be considered for promotion, notwithstanding that A
they may not have rendered the prescribed qualifying period
of service in that grade but have completed successfully the
prescribed period of probation."

To clarify Note 3 quoted above, Office Memorandum dated July 19,
1989, was issued which is in the following terms : - B

"When juniors who have completed the eligibility period are con-
sidered for promotion, their seniors would also be considered
irrespective of whether they have completed the requisite service
provided they have completed the probation period. In order to C
ensure that seniors who might have joined later due to various
reasons are not overlooked for promotion."

On November 11, 1989, the appellant and 79 other candidates wece
promoted to the post of Inspector. The promotion order stated that the
same was provisional and subject to further revision or modifications, if D
any. The appellant joined as Inspector at Allahabad and continued to serve ·:
in that capacity 'till the impugned order of reversion was passed. On
February 20, 1992, the Additional Collector (P & V), Central Excise and
Customs, Allahabad, passed an order reverting the appellant from fhe post
of Inspector. No reason was assigned in the order of reversion. No oppor-
tunity, whatsoever, was afforded to the appellant before passing the said E
order. The appellant challenged the order of reversion before the Central
Administrative Tribunal, Allahabad. Before Tribunal, the respondents took
the stand that on transfer from Delhi to Allahabad, the service rendered
by the appellant at Delhi was wip~d off for all purposes including fc..r
determining her eligibility under the rules for promotion to the post of F
Inspector. The Tribunal dismissed the application of the appellant.

We are of the view that the Tribunal fell into patent error in dismiss-
ing the application of the appellant. A bare reading of para 2 (ii) of the
executive instn1ctions dated May 20, 1980 shows that the transferee is not
entitled to count the service rendered by him/her in the former collectorate G
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 be 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 H
830 SUPREME COURT REPORTS [1993] SUPP. 3 S.C.R.

A has put in 2 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
B 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 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.
c
The provisions of the rules reproduced above lay down that a UDC
with 5 years service or UDC with 13 years of total service as UDC .and
LDC taken together subject to the condition that he should have put in a
minimum of 2 years of service in the grade of UDC, is eligible to be
D considered for promotion to the post of Inspector. The rule nowhere lays
down than 5 years or 13 years have to be spent in one collectorate. There
is no indication, whatsoever, in the rule that the service period of 5 years
and 13 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 5 years .
E as UDC and also having completed 13 years composite service as UDC
and LDC including 2 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.
F
The appellant has stated in para 11 of the petition that 8 persons
junior to the appellant were promoted as Inspectors. According to her,
even if it is assumed that she was ineligible, she was entitled to be promoted
in terms of Note 3 to the Schedule to the rules (reproduced above) read
with Office Memorandum dated July 19, 1989 (quoted above). This argu-
G ment has not been dealt with by the Tribunal. Prima f acie there is force in
the argument but it is not necessary for us to go into the same.

We allow the appeal, set aside the judgment of the Central Ad-
ministrative, Allahabad, dated June 1, 1992 and allow the application of
H the appellant before the said Tribunal. We quash the order dated February
SMT. RENU v. U.0.1. (KULDIP SINGH, J.] 831

• 20, 1992, reverting the appellant, Renu Mullick, from the post of Inspector A
to the post of Tax Assistant. We direct that the appellant shall be deemed
to be continuing to hold the post of Inspector from the date when she
originally joined as inspector as a result of the promotion order dated
November 11, 1991. She will be entitled to all the consequential benefits
including full back wages. The arrears of back wages shall be paid to the
appellant with 12% interest per annum. The appellant shall also be entitled B
to the costs of this litigation which we quantify as Rs. 10,000.

T.N.A. Appeal allowed.