(1.) This appeal is directed against the order of the Central Administrative tribunal, Bombay. The appellant was a Group B Officer in the Customs and excise Branch of the Central Government. He was promoted to Group A as assistant Collector, Junior Scale on 10-6-1976 on ad hoc basis. The said ad hoc promotion was regularised with effect from 29-8-1978, and he has been continuing as such from that date in the promotional grade of Assistant collector, Group A, Junior Scale. When the seniority list of the direct recruits and promotees in the cadre of Assistant Collector, Junior Scale was drawn up in 1984, the appellant was assigned Serial No. 1089 below the direct recruits of 1980 batch. The appellant assailed the said seniority assigned to him, inter alia, on the ground that he having been regularised in the promotional post with effect from 29-8-1978, there is no reason not to take the continuous service from that date for the purpose of seniority. The appellant also contended that there is no rule, which enables the Union Government to assign seniority to a duly promoted candidate from a later point of time than the date of his due promotion, and therefore he prayed for the redetermination of his seniority in the cadre of Assistant Collector, Group A, junior Scale. The Tribunal, however, by the impugned order rejected the prayer of the appellant on the ground that in the absence of a statutory rule, the determination of seniority was required to be made in accordance with the office memorandum dated 26-12-1959, and under the said memorandum the seniority has to be adjusted between a direct recruit and a promotee on 50:50 basis, and therefore the Tribunal came to a conclusion that there is no infirmity with the seniority assigned to the appellant by the Department concerned.
(2.) Mr Dwivedi, the learned Senior Counsel appearing for the appellant contended that the Tribunal has wholly misconstrued the relevant provisions of the office memorandum governing the criteria for determination of inter se seniority between the direct recruits and promotees amongst the officers, who are promoted from Group B to Group A and those of the direct recruits, who are recruited to Group A, and such misconstruction of the memorandum vitiates the conclusion. According to Mr Dwivedi, the fact that the appellant has been regularised as an Assistant Collector in the junior scale with effect from 29-8-1978, his seniority in the cadre of Assistant Collector, Junior Scale must be determined on the basis of continuous appointment from that date, and it cannot go beyond the direct recruits of 1980 and the period of two years of continuous appointment from 1978 to 1980 cannot in any event be held to be fortuitous for the purpose of determination of seniority in the cadre. Learned Additional Solicitor-General appearing for the Union of India contended before us that the ratio between the promotees and the direct recruits in the cadre of Assistant Collector, Junior Scale is 50:50, and on the date the appellant was regularised on 29-8-1978 as a promotee, the number of promotees were far in excess than the quota available to them and in that view of the matter he could not have claimed seniority on the basis of his continuous appointment from that date, notwithstanding the fact that he was regularised on 29-8-1978. This stand does not appear to have been taken before the Tribunal as it is not apparent from the counter-affidavit filed before the Tribunal as well as the discussion made by the Tribunal in the impugned judgment. If it is established as a fact that the appellant was regularised on 29-8-1978 beyond the quota available to the promotees then possibly he cannot claim seniority on the basis of such regularisation with effect from 29- 8-1978, in view of the admitted position that in the cadre of Assistant collector, Junior Scale, the ratio between the direct recruits and promotees should be 50:50. Since this question had not been agitated or gone into, which will have a bearing in determining the seniority in accordance with clause (6) of the office memorandum dated 26-12-1959, we set aside the impugned order of the Tribunal and remit the original application to the tribunal for reconsideration and readjudication of the dispute between the parties. Mr Dwivedj in course of his arguments has contended that the stand of the Union Government that the promotees were far in excess of the quota available to them in 1978 is not correct, and in fact the promotional quota was available even earlier in 1977. Since we are remitting the matter to the tribunal, the Tribunal may also consider the same on the basis of the materials to be produced by either party and come to a conclusion one way or the other whereafter the Tribunal would determine the question of inter se seniority on the basis of the relevant rules in force in 1978 governing the question of seniority. The parties, namely, the Union of India as well as the appellant are permitted to file additional affidavits before the Central administrative Tribunal within 8 weeks from today, and if they do not file any affidavit within the said period, the Tribunal will reconsider the matter on the basis of the materials already on record. The impugned order of the tribunal is set aside and the matter is remitted back to the Tribunal for redisposal. The appeal is accordingly disposed of. Needless to mention, the question of seniority has to be adjudicated upon the relevant rules which were prevalent at that time.