(Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a writ of certiorari, calling for the records relating to the order dated 9.12.2004 in O.A.No.23 of 2004 on the file of the Central Administrative Tribunal, the 1st respondent herein and quash the same.)

R. Sudhakar, J.

Though the miscellaneous petitions are listed for disposal, by consent of learned counsel for the parties, the main writ petition itself is taken up for disposal.

2. The writ petition has been filed by (i) Union of India, represented by its Secretary to Government, Ministry of Finance, (ii) Central Board of Excise and Customs, represented by its Member (P & V) and (iii) Union Public Service Commission, represented by its Secretary, challenging the order of the Tribunal dated 9.12.2004. The affidavit in support of the writ petition has been filed by the third petitioner, namely, the Deputy Secretary, Union Public Service Commission.

3. The Tribunal’s order, which is impugned before this Court, reads as follows:

"We are therefore of the considered view that the prayer of the applicant has to be granted. Accordingly, we direct the respondents to review the case of the applicant for promotion to the grade of Joint Commissioner for the year 1997-98 in accordance with the revised instructions of the DOPT vide O.M. dated 8.2.2002. and the later instructions on the subject and further direct that this exercise shall be completed within a period of two months from the date of receipt of a copy of this order. If the applicant is found suitable, he is entitled to get the consequential benefits on par with his juniors. The O.A. is allowed as above."

4. The case of the second respondent herein who is the applicant before the Tribunal, is as follows:

The second respondent entered into the service of the Central Excise Department as Assistant Collector, presently known as Assistant Commissioner, on 13.12.1984 and thereafter, after completion of probation, he was posted in the regular vacancy as Assistant Collector (R & I), Bombay in the year 1986. He was promoted to the post of Deputy Commissioner on ad-hoc basis, by order dated 7.8.1997 and transferred to Chennai Commissionerate on 25.5.1998 and re-designated as Joint Commissioner on 21.6.1989. By order dated 20.9.2000, he was granted non-functional selection grade of Rs.14300-18200 in the junior administrative grade and designated as Additional Commissioner. On 17.10.2003, several officers officiating on ad-hoc basis as Joint Commissioners, have been appointed on regular basis in the scale of pay Rs.12000-165 00 as Joint Commissioners for the panel years 1992-93 to 1997-98. Though the contesting second respondent was officiating as Joint Commissioner, he was not promoted, while 21 of his juniors including one Mr.Devendra Mishra, Mr.R.Sekar and Mr.Ashok Kumar have been promoted for the year 1997-98. It is contended that no adverse remarks have been communicated and no vigilance case is pending against the contesting second respondent. Further, it is submitted that the contesting second respondent was on medical leave during 1997-98 as he suffered infection of the spinal cord.

5. It is further contended by the second respondent that since the promotion was for the year 1997-98, the performance and grading that could have been considered by the Departmental Promotion Committee (hereinafter referred to as "DPC"), would be for the previous five years, namely 1992-93 to 1997-98. Since he was not considered for regular promotion, he made a representation dated 31.10.2003 to the second petitioner stating that he had a good service record and that he was denied promotion to the grade of Joint Commissioner on regular basis even though his juniors have been promoted. By order dated 17.12.2003 communicated to the second respondent on 2.1.2004, the first petitioner herein informed the second respondent that the DPC has found him unfit.

6. It is the grievance of the second respondent that the