SAJEEVE N J Vs. UNION OF INDIA

JUDGEMENT

(1.) The principal question that arises for consideration in this writ petition involves application of the principles of the "sit back theory" that have been evolved by the Courts as part of service jurisprudence. In plain terms, the 'theory of sit back' postulates a situation where the incumbents in a service assume as settled, a certain state of affairs reflecting their position in a cadre or a service, vis-a-vis other persons comprised within the same service. The theory has been mostly applied in disputes involving inter se seniority and matters consequential thereto, including promotion. The dispute in the present case involves Superintendents of Central Excise, who originally commenced service as Inspectors. The contesting respondents had commenced service in the Department earlier to the petitioner. They had, on their request, been subjected to an inter-unit transfer. It is the case of the petitioner that such inter- unit transfer, on request, would entail loss of seniority in the parent unit and the transferee has to take his place at the bottom of the cadre in the unit to which he is transferred. Accordingly, the contesting respondents, the petitioner contends, had commenced service in the unit in question, subsequent to him. They had accepted the position that the petitioner is senior to them. The petitioner had also accepted the position and he contends that he, therefore, was entitled to sit back and assume the said state of affairs as governing the parties. It was after a long lapse of several years that the position was sought to be reviewed at the instance of the contesting respondents and such a plea, according to the petitioner, should not have been entertained, let alone be accepted. It is essentially this contention, involving the application of the principles of "sit back theory", that has been mooted for consideration.

(2.) The petitioner entered service as a directly recruited Inspector in the Commissionerate of Customs and Central Excise, Cochin on 25.8.1975. At the same time, respondents 5 and 6 entered service in the Madurai Division on 11.12.1974 as Inspectors, but later, were transferred to the Cochin Commissionerate, wherein they commenced service on 13.12.1976 and 5.12.1977 respectively. Such transfer of respondents 5 and 6, indisputably, were, on their request.

(3.) This inter se position amongst the petitioner and respondents 5 and 6 in the Cochin Commissionerate was prevailing from 1976-77 onwards and it is, on the said basis that the petitioner was promoted as Superintendent of Central Excise on 5.3.1993 and respondents 5 and 6 came to be promoted to the said post on 30.9.1996. The petitioner makes a reference to the seniority list of Inspectors published on 5.12.1994 (Annexure R5(d) produced by the petitioner herein along with the reply statement filed by him before the Central Administrative Tribunal.) The petitioner was rank No.186 and respondents 5 and 6 were 279 and 288 respectively.