(Prayer: Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus calling for the records relating to the order dated 21.07.2010made in O.A.No. 8 of 2009 passed by the Central Administrative Tribunal, Madras Bench and quash the same and consequently direct the third respondent to promote the petitioner to the post of Inspector of Central Excise by including her name in the list dated 16.05.2008 with all consequential benefits.

Petition under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus calling for the records relating to the order dated 21.07.2010made in O.A.No. 1075 of 2009 passed by the Central Administrative Tribunal, Madras Bench and quash the same and consequently direct the third respondent to promote the petitioners to the post of Inspector of Central Excise by including their names at appropriate places in the order No.49/2008 dated 16.05.2008 with all consequential benefits.)

Common Order:

C.V. Karthikeyan, J.

1. Both the Writ Petitions have been filed by the applicants before the Central Administrative Tribunal aggrieved by the orders dated 21.07.2010 in O.A.No. 8 of 2009 (W.P.No. 3692 of 2011) and in O.A.No. 1075 of 2009 (W.P.No. 3693 of 2011).

2. In view of the fact that the issue raised in both the Writ Petitions are similar and common arguments have been advanced raising the same grounds, a common order is passed in the two Writ Petitions.

3. The petitioners were working as Senior Tax Assistant, who claimed to be eligible to be considered for promotion to the post of Inspector of Central Excise. It had been contended that the post of Inspector of Central Excise should be filled by promotion on the basis of suitability following the principles as stipulated in O.M.No. 35034/7/97 ESTT dated 08.02.2002 and by O.M.No. 35034/7/97 ESTT dated 15.09.2005. It was contended that while granting promotion, the general guidelines should not be normally overlooked. If the candidate had fulfilled the necessary bench mark then promotion should be only on the basis of seniority irrespective of their performance appraiser. The Tribunal by the order dated 21.07.2010 had stated that the applicants were not eligible for promotion. The Tribunal had relied on an order of the Hyderabad Bench of the Central Administrative Tribunal in O.A.No. 398 of 2008 wherein it had been held that the Department Promotion Committee have to grade the officers as 'fit' or 'unfit' with reference to the bench mark of 'good' and thereafter a panel must be prepared for promotion and then promotion should be granted instead of blindly following the seniority list irrespective of the appraiser performance of their work.

4. We have heard arguments advanced by Mr. Madhu for M/s. M.Rani, learned counsel for the petitioner in W.P.No. 3692 of 2011. There was no representation for the learned counsel for the petitioner in W.P.No. 3693 of 2011. We have also heard the arguments advanced by Mr.K.Srinivasamurthy, learned Senior Panel Counsel for Central Government appearing for the respondent Nos. 1 to 3 in both the Writ Petitions.

5. It is the contention of the learned counsel for the writ petitioners that their promotion to the post of Inspector in Central Excise Department has to be granted only on the basis of the guidelines issued in O.M.No. 35035/7/97-ESTT dated 08.02.2002 and further confirmed in a subsequent Office Memorandum dated 16.02.2005. It had been therefore contended that the petitioners should have been promoted from the post of Senior Tax Assistants to the post of Inspectors of Central Excise only in accordance with seniority and not on the basis of any other criteria.

6. Mr.K.Srinivasa Murthy, learned Senior Panel Counsel for Central Government appearing for the respondent Nos. 1 to 3 in both the Writ Petitions however pointed out that the Department where the writ petitioners functioned, namely, the Central Excise Department was governed by the Finance Ministry and they had issued special instructions as to how promotion should be granted and had revised the procedure in accordance with the DoPT instructions dated 08.02.2002 on and from 27.08.2008. It was contended that the said guidelines would be applicable prospectively and not retrospectively.

7. We have carefully considered the arguments advanced.

8. The Office Memorandum of the Department of Personnel and Training dated 08.02.2002 provided that the bench mark for promotion should be a gradation of 'good' and that on the basis of the said gradation, the Officer should be graded as 'fit' or 'unfit' and those, who are considered as fit should be included in that panel for promotion. It was very specifically stated that in the case of promotion, the distinction of 'selection by merit' and 'selection cum seniority' were dispensed with and they were termed as 'selection' only. These instructions were issued to the Departmental Promotion Committees. But however, it is to be further noted that the petitioners, as Officers of the Central Excise Department were governed by the Ministry of Finance. By communication dated 07.04.2008 from the office of the Chief Commissioner of Central Excise relating to promotion for the post of Inspector gradings from 2001-2002 to 2005-2006 were called for. Subsequently, by a further communication from the Ministry of Finance, Department of Revenue dated 16.05.2008, it had been stated that subject to the decision of the Supreme Court in similar matters were pending, promotion could be granted but those Officers, who were graded 'unfit' would not be included in the selection panel and only those who had been graded as 'fit' in the prescribed benchmark of the DPC would alone be considered for promotion. This communication was to be adopted for the subsequent years and for the subsequent DPC meetings held subsequent to 27.08.2008.

9. The fact that the Office Memorandum would be adopted on and from 27.08.2008 had not been challenged by the petitioners. They only sought a right to be promoted in accordance with the Office Memorandum dated 08.02.2002. But however, the decision taken to adopt the said Office Memorandum with effect from 27.08.2008 had not been questioned by the petitioners. The adoption of the memorandum dated 08.02.2002 is therefore prospective on and from 27.08.2008. The petitioners cannot seek advantage of the said Office Memorandum when it was not applicable to the Department where they were functioning.

10. We find no infirmity in the orders of the Tribunal and accordingly, the said orders are confirmed. The Writ Petitions stand dismissed. No costs.