IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

[ Order XVI Rule 4(1)(a)]

S.L.P. (C) No. OF 2014

(Arising out of the final Judgment and order dated

21.01.2013 in CWP No. 25662 of 2012 (O&M) and
Order dated 29.04.2013 in Review Application No. 153
of 2013 in Civil Writ Petition No. 25662 of 2012 passed
by the High Court of Punjab and Haryana at
Chandigarh]

WITH

(PRAYER OF INTERIM RELIEF)

BETWEEN

Position of Parties
In the High In this Court
Court
1.Union of India Petitioner Petitioner
Through Secretary No. 1 No. 1
Ministry of Finance
Department of Revenue
North Block, New Delhi-
110001

2. Chairman Petitioner Petitioner

Central Board of Excise & No. 2 No. 2
Customs, Ministry of
Finance, Department of
Revenue, North Block,
New Delhi
 VERSUS

1. Balwinder Singh Respondent Respondent

Matharoo No. 2 No. 2
S/o Gurdev Singh
R/o H. No. 1715/28
Street No. 10, Shimla Puri
Ludhiana, Punjab
Posted as Superintendent
HQ, Audit Branch,
Central Excise
Commissionerate, F-Block
Rishi Nagar, Ludhiana
Punjab

2. Roop Singh Respondent Respondent

S/o Mohinder Singh No. 3 No. 2
R/o Village Saidpura
PO Raipur Majri
Tehsil Kjamnao
District Fatehgarh Sahib
Punjab.
Posted as Superintendent
HQ, Anti Smuggling
Branch, Customs and
Central Excise
Commissionerate, Jammu

3.Kulwant Singh Respondent Respondent

S/o Sarwan Singh No. 4 No. 3
R/o H. No. 1693
Phase.5, Mohali
Punjab
Posted as Superintendent
Central Excise Range-III
Central Excise
Commissionerate
Chandigarh-I, Central
Revenue Building,
Sector 17 C, Chandigarh

4. JAS Ghuman Respondent Respondent

S/o Gian Singh Ghuman No. 5 No. 4
R/o Sainipur Road
District Fatehgarh Sahib
Punjab
Posted as Superintendent
Central Excise Range-II,
Rajpura, Central Excise
Commissionerate
Chandigarh-II, Central
Revenue Building,
Sector-17-C, Chandigarh

5. Surjit Singh Respondent Respondent

S/o Fauqir Chand No. 6 No. 5
R/o 64, Krishna Square 2
Posted as Superintendent
HQ, Technical Branch,
Customs Preventive
Commissionerate, The Mall,
Amritsar, Punjab

Contesting
Respondents

6. Central Administrative
Tribunal, Chandigarh
Bench, Sector-17
Through Registrar Respondent Respondent
No. 1 No. 6

To,
The Hon’ble the Chief Justice of India and his
Companion Justices of the Hon’ble Supreme
Court of India.

MOST RESPECTFULLY SHOWETH:

1. That the petitioners are filling the present

Petition for seeking Special Leave to appeal

against the final impugned Judgment and order

dated 21.01.2013 in CWP No. 25662 of 2012

(O&M) and Order dated 29.04.2013 in Review

Application No. 153 of 2013 in Civil Writ Petition

No. 25662 of 2012 passed by the High Court of

Punjab and Haryana at Chandigarh, whereby the

Hon’ble High Court has dismissed the Writ Petition

and well as the Review Application filed by the

Petitioners.

1. QUESTIONS OF LAW:
(i) Whether the respondents including Balwinder

Singh Matharoo while availing the benefit of

Intercommissionerate transfers under the

provisions of rules framed in para 3.5 of the

DOP&T’s O. M. dated 03.07.1986, para 2(ii) of

letter no. A-22013/34/80-Ad. III.B. dated

20.05.1980, Board’s Letter dated A-

22015/23/2011-Ad.III.A dated 27.10.2011 and

para 2 of Ministry of Finance, Department of

Revenue’s order F. No. A-11012/01/96 Ad-IV

dated 10.09.96 and 29.05.1997 are entitled to

count the service rendered by them in the former

collectorate for the purpose of seniority and

promotion in the new charge?

(ii) Whether the impunged order passed by the

Hon’ble High Court confirming the order passed by

the learned CAT allowing the O.A. filed by the

respondent herein by solely placing reliance on the

decision rendered by the Principal Bench CAT,

Delhi in O.A. No. 651 of 1997 in I.C. Joshi’s case

(which was upheld by Hon’ble High Court of Delhi

and Special Leave Petition filed by the Department

has been dismissed in limine on the ground of

inordinate delay) is erroneous as the same would

amount to interfering in the power vested in the

Government to make policies in regard to Inter-

Commissionerate transfers of the employers of the

Department on Compassionate grounds?

(iii) Whether the Hon’ble High Court fell in grave

error of law in passing the impugned order

essentially premised on the decision of the Hon’ble

Supreme Court of India in SLP(c) cc no. 18748-

18749 of 2011 in matter titled Union of India &

Others Vs I C Joshi & Others in view of the fact

that in the said proceedings Union of India was not

represented by a counsel before the Hon’ble High

Court during the course of arguments on the final

date of hearing and the order passed by the

Hon’ble High Court of Delhi in I.C. Joshi’s case

without hearing the counsel for Union of India has

caused serious prejudice to the stand taken by the

Union of India thereby resulting in passing of an

adverse order by the Hon’ble High Court without

hearing the Appellants/Union of India in a matter

involving interpretation of substantial questions of

law relating to powers vested in the Government

to make policy decisions Significantly, the Hon’ble

Supreme Court summarily dismissed the Special

Leave Petition against the aforesaid judgment of

the High Court of Delhi and it is a settled

proposition that summary dismissal of Special

Leave Petition does not constitute binding re-

judicata and in an appropriate case the Hon’ble

Supreme Court may not feel bound by the

summary dismissal of a Special Leave Petition

arising from an identical issue (Union of India vs

Ranchi Municipal Corporation (1996) 7 SSC 542)?

(iv) Whether the impugned order passed by the

Hon’ble High Court as well the Ld. CAT is

erroneous because it solely placed it reliance on

the decision rendered in I. C. Joshi’s case to

adjudicate the disputes between the parties

without appreciating the fact that the decision in I.

C. Joshi’s case by the Hon’ble High Court of Delhi

and the Ld. CAT, New Delhi is patently erroneous

in law because it was based on misinterpretation

of the rules framed by the Government relating to

counting of past service rendered in

previous/former commissionerate (under inter-

commissionerate transfer) for seniority and

promotion and further more it wrongly applied the

ratio of the Judgement of the Hon’ble Supreme

Court in Union of India & ors vs C. N. Ponnappan

(1996) 1 SCC 524 and Renu Malik vs. Union of

India & Annr. AIR 1994 SC 1152 and in fact the

correct view echoed by the Hon’ble Supreme Court

in Union of India & Others Vs Dev Narayan &

Others (2208) 10 SSC 84 after duly considering

the dictum in Ponappan’s case (supra) and Renu

Mallik’s case (supra), observed that the findings of

the Supreme Court in the aforesaid cases did not

militate against the case of department as they

only protect/preserve the experience of such

employees in the previous commissionerate,

however, do not allow such transferee to claim

seniority over the employees in the transferee

department?

(v) Whether the impugned order passed by the

Hon’ble High Court and the learned Cat is

erroneous and cannot be legally tenable in view of

the ratio laid down by the Hon’ble Supreme Court

in Deo Narain’s case (Supra) wherein it has

categorically held to the contrary in para 32, 33,

35 and 36 which is reproduced herein below;

Para 32- what was held in ponappan’s case by this

court was that if an employee is transferee 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 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 an employee who had already

worked in particular cadre and gained experience,

will not lose past service and experience for the

purpose of considering eligibility when his case

comes up for consideration for further promotion.

Para 33- In our Judgment, the ratio laid down by

the court in Ponnappan’s case clearly lays down

the principle formulated in the Government of

India’s Letter dated 20.05.1980 as also in a

subsequent communication dated 23.05.1997

issued by the Ministry of Finance, Department of

Revenue. Even otherwise, in our considered

opinion, the two concepts (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 zone of Consideration.

Even if he fulfils the first requirement, but does

not come within the zone of consideration in the

light of his, position and placement in “Seniority”

and the second condition 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. CAT, in our view, therefore

was not right in applying Ponappan in granting

relief to the applicants. There is no doubt in our

mind that it says to the contrary.

Para 35- In our opinion Renu Mallik also supports

the view which we are inclined to take namely,

that an employee who is transferred to another

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.

Para 36- finally, in scientific advisor to Raksha

Mantri vs V. M. Joseph again a similar view has

been taken by this court. It was held that if the

eligibility condition require 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?

(vi) Whether the Impugned order passed by the

Hon’ble High Court as well as the Learned CAT is

tenable in law in view of the Judgment dated

27.04.2011 passed by the Hon’ble Supreme Court

in Civil Appeal No. 5357 of 2008 in the matter

titled Narottam Rath & Others Vs Union of India &

Others wherein the Learned CAT Cuttack Bench in

O.A. No. 646 of 1997 vide their order dated

23.11.19998 held to the contrary “that the

applicants have come on Inter-Commissionerate

transfer to Bhubaneshwar Commissionerate from

other Commissionerate on their own option after

forgoing seniority and they have been placed

below the Junior most Inspectors at the time of

their joining and their seniority is reckoned

accordingly. The position will be nullified if they

are allowed to be promoted to the upgraded posts

of superintendent over the head of their seniors

for the above two reasons we hold that the

applicants are not entitled to be considered for

promotion to the upgraded posts of

Superintendent over the head of their seniors in

Bhubaneswar Collectorate even though they have

put in requisite number of years of service and are

eligible on the ground of number of years of

service rendered but they are not eligible on the

ground of seniority”. The Judgement of the

Tribunal was upheld by the High Court of Orrisa,

Cuttack vide their order dated 29.03.2007 in O.J.

No. 18143 of 1998 and by the Hon’ble supreme

Court Vide their order dated 27.04.2011 in civil

Appeal No. 5537 of 2008?

3. DECLARATION IN TERMS OF RULE 4(2) :

The petitioner states that no other similar petition

seeking leave to appeal has been filed against the

impugned judgment and Order dated 21.01.2013

in CWP No. 25662 of 2012 (O&M) and Order dated

29.04.2013 in Review Application No. 153 of 2013

in Civil Writ Petition No. 25662 of 2012 passed by

the High Court of Punjab and Haryana at

Chandigarh.

4. DECLARATION IN TERMS OF RULE 6:

The Annexure P-1 to P-8 along with Special leave

petition are true copies of pleadings, documents

which form part of record of the case.

5. GROUNDS:

Special leave to appeal is sought for on the

following among other grounds:

A. Because the respondent including Balwinder

Singh Matharoo were not entitled to count the

service rendered by them in the former

Collectorate for the purpose of seniority and

promotion in the new charge under the

provisions of rules framed in para 3.5 of the

DOP&T O.M. dated 03.07.1986, para 2(ii) of

para 2(ii) of letter no. A-22013/34/80-Ad. III.B.

dated 20.05.1980, Board’s Letter dated A-

22015/23/2011-Ad.III.A dated 27.10.2011 and

para 2 of Ministry of Finance, Department of

Revenue’s order F. No. A-11012/01/96 Ad-IV

dated 10.09.96 and 29.05.1997.

B. Because the Hon’ble High Court erred in

confirming the order passed by the learned CAT

allowing the O.A. filed by the respondent herein

by solely placing reliance on the decision

rendered by the Principal Bench CAT, Delhi in

O.A. No. 651 of 1997 in I.C. Joshi’s case (which

was upheld by Hon’ble High Court of Delhi and

Special Leave Petition filed by the Department

has been dismissed in limine on the ground of

inordinate delay) is erroneous as the same

would amount to interfering in the power vested

in the Government to make policies in regard to

Inter-Commissionerate transfers of the

employers of the Department on Compassionate

grounds.

C. Because the Hon’ble High Court fell in grave

error of law in passing the impugned order

essentially premised on the decision of the

Hon’ble Supreme Court of India in SLP(C) CC

No. 18748-18749 of 2011 in matter titled Union

of India & Others Vs I.C. Joshi & Others in view

of the fact that in the said proceedings Union of

India was not represented by a counsel before

the Hon’ble High Court during the course of

arguments on the final date of hearing and the

order passed by the Hon’ble High Court of Delhi

in I.C. Joshi’s case without hearing the counsel

for Union of India has caused serious prejudice

to the stand taken by the Union of India thereby

resulting in passing of an adverse order by the

Hon’ble High Court without hearing the

Appellants/Union of India in a matter involving

interpretation of substantial questions of law

relating to powers vested in the Government to

make policy decisions. Significantly, the Hon’ble

Supreme Court summarily dismissed the Special

Leave Petition against the aforesaid judgment of

the High Court of Delhi and it is a settled

proposition that summary dismissal of Special

Leave Petition does not constitute binding re-

judicata and in an appropriate case the Hon’ble

Supreme Court may not feel bound by the

summary dismissal of a Special Leave Petition

arising from an identical issue (Union of India vs

Ranchi Municipal Corporation (1996) 7 SSC

542).

D. Because the impugned order passed by the

Hon’ble High Court as well the Ld. CAT is

erroneous because it solely placed it reliance on

the decision rendered in I. C. Joshi’s case to

adjudicate the disputes between the parties

without appreciating the fact that the decision

in I. C. Joshi’s case by the Hon’ble High Court of

Delhi and the Ld. CAT, New Delhi is patently

erroneous in law because it is based upon

misinterpretation of the rules framed by the

Government relating to counting of past service

rendered in previous/former commissionerate

(under inter-commissionerate transfer) for

seniority and promotion and further more it

wrongly applied the ratio of the Judgement of

the Hon’ble Supreme Court in Union of India &

ors vs C. N. Ponnappan (1996) 1 SCC 524 and

Renu Malik vs Union of India & Annr. AIR 1994

SC 1152 and in fact the correct view echoed by

the Hon’ble Supreme Court in Union of India &

Others Vs Dev Narayan & Others (2008) 10 SSC

84 after duly considering the dictum in

Ponappan’s case (supra) and Renu Mallik’s case

(supra), observed that the findings of the

Supreme Court in the aforesaid cases did not

militate against the case of department as they

only protect/preserve the experience of such

employees in the previous commissionerate,

however, do not allow such transferee to claim

seniority over the employees in the transferee

department.

E. Because the impugned order passed by the

Hon’ble High Court and the learned Cat is

erroneous and cannot be legally tenable in view

of the ratio laid down by the Hon’ble Supreme

Court in Deo Narain’s case (Supra) wherein it

has categorically held to the contrary in para

32, 33, 35 and 36 which is reproduced herein

below;

Para 32- what was held in ponappan’s case by

this court was that if an employee is transferee

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 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 an

employee who had already worked in particular

cadre and gained experience, will not lose past

service and experience for the purpose of

considering eligibility when his case comes up

for consideration for further promotion.

Para 33- In our Judgment, the ratio laid down

by the court in Ponnappan’s case clearly lays

down the principle formulated in the

Government of India’s Letter dated 20.05.1980

as also in a subsequent communication dated

23.05.1997 issued by the Ministry of Finance,

Department of Revenue. Even otherwise, in our

considered opinion, the two concepts (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 zone of

Consideration. Even if he fulfils the first

requirement, but does not come within the zone

of consideration in the light of his, position and

placement in “Seniority” and the second

condition 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. CAT, in our view,

therefore was not right in applying Ponappan in

granting relief to the applicants. There is no

doubt in our mind that it says to the contrary.

Para 35- In our opinion Renu Mallik also

supports the view which we are inclined to take

namely, that an employee who is transferred to

another 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.

Para 36- finally, in scientific advisor to Raksha

Mantri vs V. M. Joseph again a similar view has

been taken by this court. It was held that if the

eligibility condition require 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?

F. Because the Impugned order passed by the

Hon’ble High Court as well as the Learned CAT

is tenable in law in view of the Judgment dated

27.04.2011 passed by the Hon’ble Supreme

Court in Civil Appeal No. 5357 of 2008 in the

matter titled Narottam Rath & Others Vs Union

of India & Others wherein the Learned CAT

Cuttack Bench in O.A. No. 646 of 1997 vide

their order dated 23.11.19998 held to the

contrary “that the applicants have come on

Inter-Commissionerate transfer to

Bhubaneshwar Commissionerate from other

Commissionerate on their own option after

forgoing seniority and they have been placed

below the Junior most Inspectors at the time of

their joining and their seniority is reckoned

accordingly. The position will be nullified if they

are allowed to be promoted to the upgraded

posts of superintendent over the head of their

seniors for the above two reasons we hold that

the applicants are not entitled to be considered

for promotion to the upgraded posts of

Superintendent over the head of their seniors in

Bhubaneswar Collectorate even though they

have put in requisite number of years of service

and are eligible on the ground of number of

years of service rendered but they are not

eligible on the ground of seniority”. The

Judgement of the Tribunal was upheld by the

High Court of Orisa, Cuttack vide their order

dated 29.03.2007 in O.J. No. 18143 of 1998

and by the Hon’ble supreme Court Vide their

order dated 27.04.2011 in civil Appeal No. 5537

of 2008.

6. GROUNDS FOR INTERIM RELIEF:

That the impugned final judgment and Order

dated 21.04.2013 in CWP No. 25662 of 2012

(O&M) and order dated 29.04.2013 in Review

Application No. 153 of 2013 in Civil Writ Petition

No. 25662 of 2012 passed by the High Court of

Punjab and Haryana at Chandigarh has been

passed ignoring the merits of the matter and if

the impugned order is not stayed grave

prejudice shall be caused to the petitioner. The

balance of convenience is also in favour of the

petitioner. The Respondents have filed

Contempt Petition and therefore the Petitioner

complied with the operative part of the order of

the CAT on 18.03.2013 vide Establishment

Order No. 31 of 2013, however subject to final

outcome of judicial review of the subject matter

available to the petitioner.

7. MAIN PRAYER:

The petitioner therefore respectfully prays that

this Hon’ble Court may be pleased to:

(a) Grant special leave to appeal against the

final judgement and order dated 21.01.2013 in

CWP No. 25662 of 2012 (O&M) and Order

dated 29.04.2013 in Review Application No. 153

of 2013 in Civil Writ Petition No. 25662 of 2012

passed by the Hon’ble High Court of Punjab and

Haryana at Chandigarh; and,

(b) Pass such other and further order(s) as may

deem fit and proper in the facts and

circumstances of the present case.

8. PRAYER FOR INTERIM RELIEF:-

The petitioner therefore respectfully prays that

this Hon’ble Court may be pleased to:

(a) ad interim ex-parte stay the operation of the

final judgment Order dated 21.01.2013 in CWP

No. 25662 of 2012 (O&M) and Order dated

29.04.2013 in Review Application No. 153 of

2013 in Civil Writ Petition No. 25662 of 2012

passed by the High Court of Punjab and

Haryana at Chandigarh; and

(b) pass such other and further orders (s) as

may deem fit and proper in the facts and

circumstances of the present case.

AND FOR THIS ACT OF KINDNESS THE

PETITIONER AS IS DUTY BOUND SHALL EVER

PRAY.

Drawan by: Filed by:

Vijay Prakash (B. K. Prasad)

Advocate Advocate for the Petitioner

Drawn on: 2013

Filed On: 2014