D. RAGHU AND OTHERS v. R. BASAVESWARUDU AND OTHERS ETC.
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Headnote — Supreme Court Reports (editorial summary, not part of the judgment)
Catchwords
Service Law – Appellants in C.A Nos.1970-1975 of 2009 (concerning entitlement to promotion to the post of Inspector, Central Excise) were originally recruited as Data Entry Operators C (DEOs) Grade ‘A’ and working as Data Entry Operators Grade ‘B’ from the year 2000 – Challenged notice dated.05.11.2002 seeking to confine promotion to the post of Inspector to category of Tax Assistant, Upper Division (UD) Clerk, Stenographer Grade- II, etc., with certain years of experience – Tribunal directed the appellants to be considered for promotion to the post of Inspectors – Challenged by Union of India and official respondents – High Court set aside the order inter alia holding that Writ Petitioners had legal right, under the erstwhile 1979 Rules, to be considered for promotion to the vacancies arising prior to the 2002 Rules which came to be made w.e.f 07.12.2002 in regard to the post of E Inspector – It also found that it was only when the Senior Tax Assistant Rules, 2003 (STA Rules, 2003) were made in the year 2003 that the restructuring in the Department, to which the Cabinet gave its approval on 19.07.2001, came into effect – Regarding vacancies arising after 07.12.2002, it was left undecided – C.A F No. 1976 of 2009 relates to the right to be promoted to the post of U.D.Clerk & Tax Assistant in Central Excise Department – High Court allowed writ petition filed against the Order of the Tribunal therein and found that promotions to the post of UDC and Tax Assistant must be effected on the basis of the rights crystallized under the 1979 Rules, as amended –
Held
Promotion to the post of Inspector was governed by the 1979 Rules till 07.12.2002 – Under the 1979 Rules, DEOs were not among the feeder categories for promotion as Inspector – By order dtd.19.07.2001, Cabinet approved restructuring of certain posts including the post of Inspector – Thereunder, the post of DEO Grade ‘B’ among other categories, were merged and the cadre of Senior Tax Assistants 74
Catchwords
D. RAGHU AND OTHERS v. 75 R. BASAVESWARUDU AND OTHERS emerged – However, the restructured cadre of Senior Tax Assistants, A did not come into being – It was born with the bringing into force of the STA Rules, 2003, on 20.01.2003 – Tribunal proceeded on the basis that the restructuring became complete with the issuance of order dtd.19.07.2001 – Appellants are not entitled to have seniority determined in respect of vacancies of Inspector arising prior to 07.12.2002 – Appellants are eligible to be considered for promotion from 20.01.2003 and are entitled to add their service as DEO Grade ‘B’ for the purpose of the 2002 Inspector Rules and considered for vacancies to be filled by promotion, which arose after 07.12.2002 – Persons in Clause (a) u/Column 12 of the 2002 Rules, are also entitled to be considered for two years from C 20.01.2003 – Seniority is to be considered based on r.5, STA Rules – Said exercise, if not carried out already shall be carried out – Further promotions based on the above will be granted – However, the promotions shall be notional where promotions have already been effected, entitling the parties to seniority and pensionary benefits – In C.A. No. 1976 of 2009, no fault is found with the order of High Court – Central Excise and Land Customs Department Group ‘C’ Posts Recruitment Rules, 1979 – Electronic Data Processing Discipline (Group-E Technical Post) Recruitment Rules, 1992 – Central Excise and Land Customs Department Inspector (Group ‘C’ posts) Recruitment Rules, 2002 – Central E Excise And Customs Department Senior Tax Assistant (Group ‘C’ Posts) Recruitment Rules, 2003 – Central Excise And Customs Department Tax Assistant (Group ‘C’ Posts) Recruitment Rules, 2003 – Interpretation of Statutes. Disposing of the appeals, the Court
Held
1.1 ANALYSIS Though there is case for the respondents that the ban on restructuring was lifted by letter dated 03.01.2002, such contention appears to be categorically belied by the prohibition against filling-up of any vacancy in respect of posts included in the cadre restructuring, till such time, as further orders are issued. Though vacancies may have arisen, which could be filled- up under the 1979 Rules, this appears to be a case where a conscious decision was taken not to fill-up the vacancies in the wake of the restructuring process which was undertaken by the
Reporter's headnote (continued) and case details
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(Civil Appeal Nos. 1970-1975 of 2009)
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A Government. Though a contention is taken that the post of Inspector is not part of the cadre restructuring, there may not be merit in the said contention. The post of Inspector emerged as re-designated post in place of the erstwhile post of Inspector/ Preventive Officer/Appraiser. More importantly, that it was a B part of the restructuring, is clear from the fact that the number of posts fell from a little over 22000 to a little over 18000. Therefore, the post of Inspector was a post which can be treated as included in cadre restructuring. The taboo against filling-up of the vacancy, is clearly reflected in the communication dated 05.06.2002. On 26.6.2002, urgent direction is issued to hold C DPC to the post of Superintendent of Central Excise and Superintendent of Customs. The next letter to notice is the letter dated 19.09.2002. Therein, after referring to letter dated 26.06.2002, it is stated that it was decided to initiate the process for filling-up vacancies that have arisen on account of cadre D restructuring in all remaining cadres up to Grade ‘B’. It was directed to ensure that apparently DPC was convened in respect of all Grades for the change of number of posts, as also Grades, where revised Recruitment Rules have been circulated. On 23.09.2002, promotion orders in respect of Superintendents were allowed to be issued. On 28.10.2002, the Draft Recruitment E Rules for Group ‘C’ post of Inspector and Senior Tax Assistant was communicated to all Chief Commissioners, both, Customs and Central Excise. It was further stated that Notifications notifying the Rules will be issued shortly. Direction was given to start the process of DPC. Thus, it could be said that by the F issuance of this communication, the Government decided to proceed with the recruitment by promotion to the post of Inspector. A perusal of the communication dated 28.10.2002, reveals the following: All chief Commissioners were favoured with Draft G Recruitment Rules for the Group ‘C’ post of Inspector (Central Excise and Land Customs), Inspector (Examiner) and Inspector (Preventive Officers). Besides the Draft Recruitment Rules for the post of Senior Tax Assistant, as approved by the Ministry, was also dispatched to the Chief Commissioners. It is specifically stated that the Notifications, notifying the Rules, will be issued
D. RAGHU AND OTHERS v. 77 R. BASAVESWARUDU AND OTHERS shortly. The Chief Commissioners were told that they may initiate necessary action to process for DC (apparently DPC). The next sentence is of crucial significance. [Paras 69-71] [146- G-H; 147-A-D; 147-G-H; 148-A-D] 1.2 This communication establishes further, the following aspects: B Restructuring the post of Inspector, contemplated under the order dated 19.07.2001, had not yet come into being. This is because there is reference to the post of Inspector (Central Excise & Customs), Inspector (Examiner) and Inspector (Preventive Officer). If the post of Inspector, as contemplated under the Order dated 19.07.2001, had already come into existence with the issuance of the Order dated 19.07.2001, there was no occasion to continue to refer to pre- designated posts from which the post of Inspector emerged. Still further, what was obviously contemplated was that the post of Inspector was to be filled-up after the process of restructuring was over. In other words, the Rules relating to Inspector and the Rules relating to recruitment of Senior Tax Assistants, was to be brought into force simultaneously. This conclusion appears inevitable from the circumstance that the Chief Commissioners were directed to await issuance of Notification notifying the Rules before orders of promotions were issued based on the Rules which were the Draft Recruitment Rules. It is not indicated in the Order dated 28.10.2002 that promotion to the post of Inspector was to be made under 1979 Rules. What was, in fact, contemplated was that the process, viz., the holding of the DPC for the post of F Inspector, was to begin and operationalised under the Draft Rules but the actual orders of promotion were to be issued only after the Rules were actually brought into force. The Draft Recruitment Rules for the Tax Assistant was also sent by letter dated 06.11.2002. In the Order dated 14.11.2002, it is specifically, inter alia, ordered that promotion orders in respect G of the post of Inspector (Central Excise)/Preventive Officer/ Examiner of Customs may be issued on the basis of the Recruitment Rules after the allotment of GSR Number by the Government of India Press. Thus, the green signal was given to go ahead with the issuance of promotion order for the post H
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A of Inspector, inter alia, based on the Recruitment Rules, after the allotment of the GSR, which means the Notification of the Rules. What actually happened was, however, as follows: The Inspector Rules and the Senior Tax Assistant Rules were not published and brought into force on the same date. The B Inspector Rules came to be finalised and published on 29.11.2002. It is brought into force on 07.12.2002. The STA Rules, though published on 16.01.2003, was brought into force on 20.01.2003. [Paras 72-75] [148-E-H; 149-A-B; 150-A-C] 2.1 WHEN CADRE RESTRUCTURING TOOK PLACE C Turning back to Note 1 to the 2002 Inspector Rules, it is noticed that promotion under Clause (a) was to be operative for a period of two years from the date on which the restructured Cadre in Clause (b) comes into existence. If the interpretation sought to be placed by the appellants is accepted, and it is held D that the restructured cadre of Senior Tax Assistant came into force with effect from 19.07.2001, the result would be that promotion under Clause (a) would be limited by a period of two years from 19.07.2001. In other words, no promotion could be ordered from the Feeder Category mentioned in Clause (a) in Column 12 of the 2002 Inspector Rules after 18.07.2003. This E also means that promotions could be, therefore, effected during the period commencing from 19.07.2001. This produces the anomalous result that promotions are to be countenanced under the 2002 Rules, retrospectively from 19.07.2001. What is more, according to the appellants, promotions were banned during the period. This, in our view, completely militates against the idea that the restructured Cadre came into being from 19.07.2001. The Court is not oblivious and has indeed expressly articulated the circumstances from communication dated 19.07.2001 which probablised the appellant’s contention that restructuring became a reality from 19.07.2001. But, the Court, at this juncture, must also notice that the actual distribution of posts in different formations was postponed. It may not be in apposite, at this juncture, to also notice another factual aspect. There is a definite case for the respondents that the Data Entry Operator Grade ‘B’ and ‘C’ continued as such and they were only re-designated as Senior Tax Assistant or Tax Assistant on the enforcement of
D. RAGHU AND OTHERS v. 79 R. BASAVESWARUDU AND OTHERS the 2003 Rules and not before such enforcement. In fact, it was also not seriously disputed before us that this was indeed the case on the ground. The Court may also find light from the STA Rules. Rule 5 declares that “all the persons appointed on regular basis at the commencement of the Rules in the Grade of Assistant, Tax Assistant, U.D. Clerk (Special Pay), Data Entry B Operator Grade ‘B’ and Grade ‘C’, shall be deemed to have been appointed as Senior Tax Assistant under these Rules”. No doubt, the Rule contemplated that the persons to be deemed to have been appointed as Senior Tax Assistant under the 2003 Rules, were the categories. What is more relevant is, they are referred to as the persons appointed at the commencement of C “these Rules”. The words used are “persons appointed”. The intention appears to be to indicate that the persons were appointed and working on the commencement of the Rules, which is on 20.01.2003. It is those persons, who were referred to by the designation, which were the posts which were held by them prior to the restructuring. In other words, appellants, who were working as Data Entry Operator Grade ‘B’, upon being promoted in the year 2000, were indeed persons who were appointed on regular basis as Data Entry Operator Grade ‘B’ as on 20.01.2003, when the Rules, admittedly, were brought into force. Further support is found for the view that the appellants became Senior Tax Assistant upon Rules being brought into force from the further limbs of Rule 5. Sub-Rules (ii), (iii) and (iv) deal with the issue of inter se seniority of the different erstwhile restructured categories from which the designated category of Senior Tax Assistant was born. Those Assistants, F who were drawing salary of pay scale of 5000-8000, and Data Entry Operator Grade ‘C’, drawing the same pay scale, were re- designated as Senior Tax Assistants in the same scale. They were to rank at the top of the seniority list of the newly created posts of Senior Tax Assistants. Just below them were put the categories of Data Entry Operator Grade ‘B’ and Tax Assistants, G both drawing the pay scale of 4500-7000, and they have been placed in the higher pay scale of 5000-8000 and they were to be placed below the Data Entry Operator Grade ‘C’. Similarly, at the bottom of the pyramid, there is the post of Upper Division Clerk with special pay, who were to be placed below all the above H
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A categories as aforesaid. Note 1, in Column 12 of the 2002 Inspector Rules provides that the promotion in Clause (a) was to be operative for a period of two years from the date on which the restructured cadres, mentioned under Clause (b) above, comes into existence. Had it been the case where the restructured cadre in Clause (b) had already come into existence, by virtue of order dated 19.07.2001, the Law Giver would have used language indicating the past tense. The Law Giver, thus, contemplated that the restructured cadre in Clause (b), which includes cadre of Senior Tax Assistants, had not come into existence and it was to come into existence. It came into existence, indeed, in the future, viz., on 20.01.2003. On a consideration of the Government Orders and, more importantly, the Statutory Rules that the conclusion appears to be inevitable that restructured cadre actually came into force in the cadre of Senior Tax Assistant with the Rules being brought into force on D 20.01.2003. Quite apart from the fact that this is the legal interpretation that flows, we are also supported by the fact on the ground that the appellants appeared to continue till after the Rules were brought into force with the designation as Data Entry Operators Grade ‘B’. A perusal of Rule 5(v) of the STA Rules 2003 would also show reference to ‘present employees’ and they E were to pass the departmental examination ‘within two years’. Failure was to result in their being rendered ineligible for future increments. Certainly, the period of two years would commence only from 20.01.2003. If so, the ‘present employees’, including the appellants continued as Data Entry Operator Grade ‘B’ till F 20.01.2003. The view that the STA Cadre emerged only on 20.01.2003, is supported by official understanding, as reflected in proceedings dated 21-04-2003. The principle of contemporanea expositio is apposite in the facts. [Paras 81-85] [153-F-H; 154-A-H; 155-A-H; 156-A-B]
G 3.1 APPELLANTS RIGHTS AS SENIOR TAX ASSISTNATS ON RESTRUCTURING The Tribunal proceeded on the basis that the restructuring became complete with the issuance of the order dated 19.07.2001. It must be noted that the Original Application came to be filed on 19.11.2002 at a time when the Inspector Rules
D. RAGHU AND OTHERS v. 81 R. BASAVESWARUDU AND OTHERS had not even been finalized as the Rules came to be finalized only on 29.11.2002 and, in fact, brought into force till later on 07.12.2002. Undoubtedly, the Note contemplated, giving persons in Clause (a), viz., those falling in the pre-restructured cadre, the benefit of taking into consideration the service rendered in the restructured Cadre, for being promoted as Inspector. The B persons falling in the restructured Cadre, were not conferred with such advantage. However, by the time the Original Application came to be heard, the Senior Tax Assistants Rules 2003 came into force with effect from 20.01.2003. Under Rule 5 of the 2003 Rules, the persons working as Data Entry Operator Grade ‘B’, inter alia, stood re-designated as Senior Tax C Assistants and they were also given the benefit of reckoning the past service and calculating the qualification of experience of two years under the Inspector Rules, 2002. In fact, the Tribunal has also taken note of the 2003 Rules. Both the persons in the pre- structured cadre and those in the restructured cadres, were, by virtue of Note 1 to Column 12 to the 2002 Rules and Rule 5(i) of the Senior Tax Assistants Rules 2003, respectively, were given the benefit of counting service as provided therein. The Tribunal, in fact, has gone on to find that the Senior Tax Assistants under Rule 5(i) of the 2003 Rules were entitled to reckon their service as Data Entry Operator Grade ‘B’ for eligibility for promotion as Inspector. The Tribunal goes on to find that the unified restructured cadre of Senior Tax Assistants alone would be eligible for promotion as Inspector. The integrated seniority is to be worked out in terms of Rule 5 of the 2003 Senior Tax Assistant Rules. This is based on the premise that with effect from 19.07.2001, the restructuring of Senior Tax Assistant came into force and all the earlier Cadres stood merged. [Para 87] [157-A-G] 3.2 The Original Application has been allowed in part. It is necessary to notice that the effect of granting the said relief and also the effect of not granting the reliefs in paragraph 8(b). G Granting of the Relief 8(c) would mean that this Court would also have to accept that under the 2002 Inspector Rules, it is only the restructured Cadre, which would be entitled for promotion to the cadre of Inspector. To put it differently, the persons falling in Category (a), which corresponds to feeder categories, under H
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A the 1979 Rules, would not be entitled for promotion as Inspector. It is now necessary to look at their prayer, i.e., 8(b) and the effect of not granting any relief thereunder. Prayer 8(b) was sought by the appellants to set aside the Recruitment Rules communicated vide 28.10.2002, as confirmed vide Gazette of India Notification dated 29.11.2002, incorporating the unconscionable conditions under Clause (a) and Note 1 of Column 12 of the 2002 Inspector Recruitment Rules. This prayer is also based on the restructuring process, having effect from 19.07.2001. The Tribunal has not granted the relief in paragraph 8(b) of the Original Application. This means that the persons in Category (a) of Column 12 of the Inspector Rules, cannot be affected. The result is that it exposes the fallacy in grant of Relief 8(c). In fact, there are two basic flaws. In the first place, the restructuring did not come into effect on issue of communication dated 19.07.2001. The restructuring came into effect only with the issuance of Rules. This by itself takes away the entire basis of the Tribunal’s Order. Secondly, the Tribunal has not declared the Statutory Rule infirm, which was the specific relief sought for by the appellants in Relief 8(b). In other words, Clause (a) of Column 12 and the Note, in the 2002 Inspector Rules impugned on the one hand, continues on the Statute Book, E whereas, the declaration is purportedly granted under paragraph 8(c), which necessarily involves declaring that only persons re-designated under the restructured cadres in Clause (b) as Senior Tax Assistants, inter alia, would be entitled to be considered for promotion as Inspector of Central Excise and Customs. In fact, the Order of the Tribunal at Chandigarh also did not involve granting any exclusive right to the persons in the restructured Cadre falling in Clause (b). The decision of the Bombay High Court also does not reflect any such reasoning. It is well-settled that when Statutory Rules are challenged, they are upheld, or if warranted, declared ultra vires or read down, if possible. The Order of the Tribunal is specific that what is granted, is the relief contained in paragraph 8(c) of the Original Application. Resultantly, Clauses (a) and (b) continued to be on the Statute Book. The Tribunal has rather allowed the Original Application partly and found that the appellants are also entitled to be considered for promotion as Inspector. In Arriving at this conclusion, the Tribunal has drawn support undoubtedly from the
D. RAGHU AND OTHERS v. 83 R. BASAVESWARUDU AND OTHERS views expressed by the Central Administrative Tribunal, A Chandigarh, the Central Administrative Tribunal, Madras and the High Court of Bombay. [Paras 88, 89] [158-C-H; 159-A-D] 4.1 WHETHER STA COULD ADD SERVICE AS DATA ENTRY OPERATORS AND WHETHER PERSONS IN CLAUSE (A) HAD AN EXCLUSIVE RIGHT FOR TWO B YEARS? The appellants are right that they are entitled to count the previous service. The words used in Rule 5 are unambiguous and clear. In this regard, the Court must also deal with the yet another contention based on the differences between Rule 5 of the Senior Tax Assistant Recruitment Rules, 2003 and Rule 4 of the Tax Assistant Rules, 2003. It may be true that there is some difference but, in our view, the words used differently in the two provisions, are not meant to take away the right, which was conferred on persons who were on restructuring to be designated as Senior Tax Assistants and Tax Assistants. In Rule 5, what is contemplated is that the service rendered by Data Entry Operators Grade ‘B’ and ‘C’, inter alia, before commencement of the Rules is to be taken about for eligibility for promotion to the next higher grade. No doubt, in Rule 4, of the Tax Assistant Rules, the Rule Maker has become more articulate. They have referred to the words like ‘respective post’, before commencement of Rules and ‘regular service’ which expressions are conspicuous by their absence in Rule 5 of the Senior Tax Assistant Rules. Better wisdom prevailed on the Law Giver in the course of few months to attain clarity in thought and expression but the Court would not be gleaning the intention of the Law Giver, if it were oblivious to the context and the object with which the entire exercise of restructuring was carried out. They would also amount to introducing an element of discrimination between the Senior Tax Assistants and the Tax Assistants in the conferring of benefits. Of foremost importance is that the view the Court has taken is warranted by even the plain words used in Rule 5. Rule 5 clearly indicates that the service which was rendered by a Data Entry Operator Grade ‘B’ and ‘C’, inter alia, prior to the commencement of the Rules, would be considered for promotion. This leaves us in no H
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A doubt that the intention was to allow the Data Entry Operator both Grade ‘B’ and ‘C’, inter alia, to tag their previous service that is prior to 20.01.2003 for the purpose of calculating the requisite period of service under the 2002 Inspector Rules. It would appear that what was contemplated was that the Inspector Rules and the STA Rules would be brought into force at the same B time. If it had so happened, the following consequences would have followed. Not only would STA would be a feeder category but STA would have been able to count their previous service as Data Entry Operator Grade ‘B’, inter alia. Still further, under Note 1, promotion under Clause (a), was to be operative for a C period of two years, from the date the restructured cadre, under Clause (b), was to come into existence. Apart from indicating that the restructured cadre ‘was to come into force’ and, therefore, it had not come into force as on 19.07.2001 as contended by the Data Entry Operators, the promotion from Clause (a) being predicated on the point of time when the D restructured cadre came into force, if the STA Rules were also brought into force from 07.12.2002, the service rendered by persons under the restructured Grade could have been availed of by persons in Clause (a) from 07.12.2002.
E As regards the argument that under the 2002 Inspector Rules, persons in Clause (a) were given an exclusive right to be promoted for a period of two years, little merit is seen in the same. Clause (c) of Column 12 provides for promotion from the categories thereunder, in the absence of persons falling in Clause (b). No such rider is found in Clause (b). If the STA Rules had been brought into force on 07.12.2002, then, it is clear that adding two years as Data Entry Operator Grade ‘B’, the appellants would certainly be eligible, particularly, keeping in mind the intent in Order dated 28.10.2002. There can be doubt that nothing stands in the way of appellants and others similarly situated being considered from 20.01.2003 by adding the service as Data Entry Operator Grade ‘B’. Both, persons in Clause (a) and persons in Clause (b), subject to being possessed of qualifications, could compete for the vacancies. The right of those in Clause (a), would come to an end from 19.01.2005. H
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There can be no doubt that the STA Rules came into effect on A 20.01.2003. The restructured cadre of STA became a reality from 20.01.2003. [Paras 92-96] [160-G-H; 161-A-H; 162-A-E] 4.2 The problem, however, arises as what is to be done qua vacancies of Inspector which were purportedly filled-up as on 20.01.2003 pursuant to Notice dated 05.11.2002 which was B impugned in O.A. 1362 of 2002. The Tribunal has not interfered with the notice dated 05.11.2002 but it has found that it was not in accordance with the Rules (apparently Inspector Rules 2002 which superseded the 1979 Rules). But this is again premised on the restructuring becoming a reality with effect from 19.07.2001. This, has been found to be erroneous. Persons in C Clause (a), under the 2002 Rules, could be promoted for a period of two years from the date the restructured categories under Clause (b) came into force. Thus, the promotion involving 2002 Rules from Clause (a) could be for a two year from 20.01.2003 as the restructured category came into force only on D 20.01.2003, even according to the respondents. Thus, for both categories in Clauses (a) and (b) (STAs), their eligibility under 2002 Rules, commenced only from 20.01.2003. If so, the question would be the effect of promotion already made as noted by the Tribunal itself. As on 05.11.2002, the 1979 Rules governed promotions. The status of the draft Recruitment Rules E is no longer res integra. While, promotion can be based on draft Recruitment Rules, it cannot be done, if the draft Rules are in the teeth of existing Statutory Rules. [Paras 97-100] [162-E-H; 163-A-C] 4.3 Vacancies were filled- up as per notice dated 05.11.2002 F from persons falling under Clause (a), who corresponded to the feeder category in the 1979 Rules. The appellants have not laid any challenge to the Order of the Tribunal. The ban on direct recruitment was to come to an end on 31.12.2002. There were 242 vacancies of Inspectors in Hyderabad Commissionerate. It G is true that under letter dated 28.10.2002, and even read with letter dated 14.11.2002, what was contemplated was promotion under the draft Recruitment Rules for Inspector and STA. Promotion orders were to be made only after GSR Number were made for the Draft Rules, meaning thereby, after it was finalised. They were intended, as already found, to be operated at the H
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A same time, thus, rendering both categories in Clauses (a) and (b), to be considered. Having regard to the fact that vacancies were not filled-up, as can be seen from communications dated 10.09.2001 and 05.06.2002, in the light of the restructuring that took place in the Department, it would appear that a conscious decision was taken to not fill- up the vacancies arising from the B restructuring based on 1979 Rules. Instead, communication dated 28.10.2002 clearly would show that the vacancies were to be filled-up, based on the proposed new Recruitment Rules. This being the case, the High Court was in error in proceeding on the basis that the principle in Y.V.Rangaiah would apply. Till C 07.12.2002, the STA was not even in Feeder Category. It has also been held that the STA Cadre is born on 20.01.2003. There is a case for the respondents that the ban on direct recruitment (which is also a method of appointment) was to come to an end. There was a need to have Inspectors in a larger number of vacancies. The STA Cadre could not have been used to fill the vacancies. The finding that from 19.07.2001, the restructured Cadre came into being, is unsustainable. In such circumstances, though it may be true, intention was to fill-up the vacancies after both sets of Rules were operationalised, promotions were made. As to whether it is legal, the answer can be that promotion, as per extant Rules, given in vacancies prior to the new Rules, is recognized. This is not a case where the Authority was denying promotion to vacancies based on the earlier Rules. It is also noticed that based on such promotion, further promotions have been given. The appellants were directed to be considered for vacancies, which were filled-up after. The Court cannot, in the circumstances, be persuaded to hold that the Tribunal was right in directing the respondents to revise the seniority qua promotion made earlier. [Paras 102-104] [163-G-H; 164-A-H]
5. LEGALITY AND CORRECTNESS OF HIGH COURT G DIRECTING VACANCIES TO BE FILLED WHICH EXSISTED PRIOR TO 07.12.2002 The High Court was not right in directing filling-up of vacancies prior to 07.12.2002, based on the 1979 Rules, as after H the 2003 Rules came into force, going by the intention of the
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Authority, the right to promotion would be based on the new A Rules, even if the vacancies arose prior to the new Rules. That is to say, when the High Court disposed of the matter, if any vacancy remained to be filled-up in the Cadre of Inspector, then, as the STA Rules had come into existence on 20.01.2003, the STAs armed with the right to add service as Data Entry Operator B Grade ‘B’, were entitled to be considered. However, it is here that the impact of the matter, having been pending in this Court for more than a decade, and, in the meantime, the judgment being implemented and further promotions being made, cannot be lost sight of, even in an Appeal, which is maintained by grant of Special Leave, as in this case. It is open to the Court to decline C to interfere. The Court bears in mind the principles laid down by this Court in Taherakhatoon (D) By Lrs. v. Salambin Mohammad and would not disturb the direction to fill-up the vacancies which arose prior to 07.12.2002, as directed. [Para 106] [165-D-H] D
6. VACANCIES OF INSPECTOR WHICH AROSE AFTER 07.12.2002 Both persons in Clauses (a) and (b)(STA Cadre) became entitled to be considered for promotion under the two sets of Rules with effect from 20.01.2003. Certainly, the appellants having worked as Data Entry Operator Grade ‘B’ are entitled to add the period of service as Data Entry Operators Grade ‘B’. Thus, vacancies of Inspector, to be filled-up by promotion, must be filled-up by considering both on the basis of the seniority, under Rule 5 of the 2003 STA Rules. The appellants would be entitled also to be considered for promotion based on the same on the basis of the entitlement, as aforesaid. [Para 107] [166-C- E] 7.1 CIVIL APPEAL NO. 1976 OF 2009 Under the 1979 Rules, on the basis of an amendment, the post of Tax Assistant (old) was incorporated by GSR 314 dated 12.07.1996. Thereunder, post of Tax Assistant (old) was included in the 1979 Rules. Promotion to the post was to be from the post of U.D. Clerk with three years’ service subject to their passing a departmental exam with minimum marks of 40 per cent. There are other rights given to Senior Clerks under the H
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A Note. Under the 1979 Rules, the post of U.D. Clerk was to be filled-up 50 per cent from direct recruitment and 50 per cent by promotion. One of the feeder categories was L.D. Clerks with seven years’ service which was relaxable up to five years. The second Feeder Category was Women Searchers recruited prior to 09.05.1975 with five years’ combined service as Women B Searcher and L.D. Clerk and who have passed departmental or promotional exam. The 1979 Rules, insofar as it related to the post of U.D. Clerks and Tax Assistants, continued to remain in force even after the promulgation of the Inspector Rules, 2002 and the Senior Tax Assistant Rules. It is when the Tax Assistant C Rules were made in supersession of the 1979 rules so far as it related to the post of U.D. Clerk and L.D. Clerk that the 1979 Rules ceased to apply. Thus, 1979 Rules continued to be in force in regard to the post of U.D. Clerk and L.D. Clerk till 05.05.2003. Under the 2003 Tax Assistant Rules, brought into force w.e.f. 05.05.2003, as contended by the official respondents before the Tribunal, the persons working as U.D. Clerks, were to be established as initial cadre of Tax Assistants. So also, the L.D. Clerks, upon passing the examination, were to become Tax Assistants. The posts of U.D. Clerk and L.D. Clerk are Group ‘C’ posts. No doubt, the ban, which was imposed on direct recruitment, was to continue till 31.12.2002 (See Order dated 19.09.2002). By Order dated 28.10.2002, the draft Recruitment Rules for Inspector and Senior Tax Assistants was communicated and the process was to be set in motion and promotion was to await the issue of Notification. [Paras 112-115] [169-B-H; 170- A-B] F 7.2 As far as the post of Tax Assistant is concerned, by the order dated 06.11.2002, all the Chief Commissioners were forwarded the draft Recruitment rules for Tax Assistants which was approved by the Ministry. The Commissioners were to initiate necessary action for the process of DPC, etc. The issue of any order passed under the draft Tax Assistant Recruitment Rules was to await issue of Notification of the said Rules. However, on 14.11.2002, it ordered, inter alia, that DPC in the remaining Grades except DOSL-222 may be held on the basis of the existing Recruitment Rules and the promotion orders issued by 25.11.2002. As far as the post of L.D. Clerks and old
D. RAGHU AND OTHERS v. 89 R. BASAVESWARUDU AND OTHERS
Tax Assistants is concerned, the vacancies, which existed as on A 06.11.2002, were to be filled-up under the existing Recruitment Rules (See letter dated 14.11.2002). The orders were to be issued by 25.11.2002. By 25.11.2002, the Tax Assistant Rules were not even finalised, leave alone brought into force. The Tax Assistant Rules came into force only by publication on B 03.05.2003 and brought into force two days thereafter, i.e., on 05.05.2003. Going by letter dated 14.11.2002, the principle that vacancies must be filled-up in accordance with the existing Rules, would appear to apply. The intention of the Authority would also appear to be the same as is evident from Clause (3) of Order date 14.11.2002. In such circumstances, there is no C scope for any ambiguity and the Court is unable to find fault with the order of the High Court. [Paras 116-118] [170-B-G]
8. SUMMARY OF CONCLUSIONS IN C.A. NOS.1970- 1975 OF 2009 D 1) Promotion to the post of Inspector was governed by the 1979 Rules till 07.12.2002.
2) Under the 1979 Rules, Data Entry Operators were not among the feeder categories for promotion as Inspector. E 3) By 19.07.2001, Cabinet approved restructuring of certain posts including the post of Inspector. The number of posts of Inspector fell from a little over 22000 to a little over 18000. Thereunder, the post of Data Entry Operator Grade ‘B’ among other categories, were merged and the cadre of Senior F Tax Assistants emerged. However, the restructured cadre of Senior Tax Assistants, did not come into being.
4) The restructured Cadre of Senior Tax Assistants was born with the bringing into force of the Senior Tax Assistant Rules 2003, on 20.01.2003. Data Entry Operators Grade ‘B’, G among other categories, were re-designated as Senior Tax Assistants under Rule 5.
5) The Inspector Rules 2002, was brought into force on 07.12.2002 superseding the 1979 Rules relating to Inspectors. H
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A 6) The post of Senior Tax Assistant, which was not among the feeder categories under the 1979 Rules, became one of the feeder categories for promotion as Inspector, under Inspector Rules, 2002 under Clause (b) of Column 12. 7) There was a ban of promotion to the posts of Inspector. B This is clear from communications dated 10.09.2001, 03.01.2002 and 05.06.2002. The communication dated 28.10.2002 read with communication dated 14.11.2002, establish that the Draft Recruitment Rules which were finalized on 29.11.2002 and brought into force on 07.12.2002 as far as Inspectors are concerned and Draft Recruitment Rules finalized and brought into force on 20.01.2002 as far as Senior Tax Assistants are concerned, were to be basis for promotion to the post of Inspector. As per Order dated 28.10.2002, Departmental Promotion Committee (DPC), was to operate, based on the draft rules but no promotion orders were to be issued till the draft rules were finalized. With order dated 04.11.2002 even the promotion orders were permitted. The authority apparently contemplated simultaneous bringing into force of the Inspector Rules and the STA Rules. 8) The High Court was in error in holding that it has to be necessarily held that the vacancies which arose prior to the revised Recruitment Rules coming into force has to be filled- up under then existing Rules (the 1979 Rules) relying upon case law including Y.V. Rangaiah (supra). There was a conscious decision taken to not fill-up vacancies based on the restructuring, and what is more, letters dated 28.10.2002 and F 14.11.2002 show that promotion to the post of Inspector was to be effected based on the new recruitment rules. 9) It is while so, that in the Hyderabad Commissionerate, by Notice dated 05.11.2002, persons falling under Clause (a) of Column 12 of the ‘Draft Inspector Rules’ who also corresponded to the feeder categories under the ‘extant’ Statutory Rules, the 1979 Rules, alone were called for selection as Inspector. 10) The benefit of reckoning service under Note 1 to categories in Clause (a) would be available only after the restructuring came into effect which was on 20.01.2003. This also indicates that the powers that be contemplated simultaneous
D. RAGHU AND OTHERS v. 91 R. BASAVESWARUDU AND OTHERS operation of the ‘Inspector Rules’ and the Senior Tax Assistant A Rules. 11) However, the Inspector Rules and the Senior Tax Assistant Rules were enforced with a gap of about six weeks. 12) The appellants even proceeding on the basis that they were to be treated as Senior Tax Assistant as on 07.12.2002, were not having the two years’ experience required under the 2002 Inspector Rules. 13) With the 2003 Senior Tax Assistant Rules brought into force on 20.01.2003 under Rule 5(1), the appellants who were working as Data Entry Operators Grade ‘B’ could take into consideration their service as Data Entry Operators Grade ‘B’ for reckoning the period of two years stipulated under the 2002 Inspector Rules. In this regard, the finding of the Tribunal is correct. Appellants in O.A. have stated that they were promoted as Data Entry Operator Grade ‘B’ in April 2000. If so, their service as such would count and even as on 07.12.2002, they would have 2 years’ service as contemplated under the 2002 Rules. As on 20.01.2003, certainly, they would be eligible to be considered for promotion as Inspectors. 14) The Tribunal not having granted prayer 8(b), the Draft E Recruitment Rules, 2002 relating to Inspectors as finalized which was impugned remained intact. The Tribunal clearly erred in granting the declaration, as sought for in paragraph 8(c), recognizing exclusive right to the restructured Cadre. 15) The restructuring Order under letter dated F 19.07.2001, fructified and became complete and effective relating to the post of Senior Tax Assistant only on 20.01.2003. The findings to the contrary by the Tribunal stood correctly set aside by the High Court. 16) The Tribunal has not interfered with the promotion G already granted to persons drawn from the categories other than the Senior Tax Assistant pursuant to Notice dated 05.11.2002. 17) Ban of Direct Recruitment was to end on 31.12.2002. In respect of promotion made earlier and not interfered with, the Tribunal could not have directed review of seniority based H
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A on later promotions as Inspector. The appellants cannot be given seniority based on later promotions qua promotions given, which cannot be termed illegal, when as on the date of earlier promotions, appellants were not even in the cadre. Promotion from Senior Tax Assistant could have been made only 20.01.2003 at the earliest. Even the categories in Clause (a) could have been promoted under the 2002 Inspector Rules, vide Note 1 only for two years starting from the date the restructured Cadre in Clause (b) come into force, i.e., 20.01.2003. 18) The contention that persons in Clause (a) of Column 12 of the Rules, who were also in the feeder categories for promotion under 1979 Rules, had an exclusive right to be considered for promotion for a period of two years is rejected. 19) While promotions can be made based on Draft Recruitment Rules, it cannot be so made, if the Draft Rules are in the teeth of existing Statutory Rules [V. Ramakrishnan and others]. In this case, however, under Orders dated 28.10.2002 and 14.11.2002, what was contemplated was processing by DPC under the Draft Recruitment Rules and issue of the promotions orders after the Draft Rules were finalized.
E 20) However, till 07.12.2002, under the 1979 Rules, being also feeder categories under the said rules, those in Clause (a) Column 12, 2002 Inspector Rules could be promoted. While it may be contrary to what was contemplated by the Central Authority (as evident from letters dated 28.10.2002 and 14.11.2002) promotions were made, which could not be termed illegal. Even the Tribunal has not set aside the promotions. 21) The High Court has directed the filling-up of vacancies prior to 07.12.2002 as per the 1979 Rules. In this regard, having regard to the fact that the vacancies were not filled-up as per the ban, as can be seen from 10.09.2001 and 05.06.2002, and it was specifically contemplated under letter dated 28.10.2002 that vacancies arising from restructuring be filled- up, as per the new Recruitment Rules, the principle in Y.V. Rangaiah may not apply and it was the Rules as on date of filling-up the vacancies, that would count. As on the date of the High Court Order, the STA H Rules 2003, had come into force on 20.01.2003. Thus, vacancies
D. RAGHU AND OTHERS v. 93 R. BASAVESWARUDU AND OTHERS existing prior to 07.12.2002 and which were not filled-up, must be filled-up by considering STA (Appellants) including their service as Data Entry Operators Grade ‘B’. 22) But it is here that the impact of the matter remaining pending, and in the meantime, implementation of the judgment and what is more, further promotions being made cannot be lost sight of. The Court bears in mind the principle laid down in Taherakhatoon (D) By Lrs. and would not disturb the directions to fill-up vacancies which arose prior to 07.12.2002, as directed. 23) However, in case of vacancies of Inspector, which arose after 07.12.2002, the appellants would, undoubtedly, have a right to be considered as explained hereinbefore. In regard to such vacancies, the matter must be looked into and seniority fixed, based on Rule 5 of the STA Rules. The persons working in Clause (a) are also entitled to be considered for a period of two years from 20.01.2003 under the Inspector Rules to be considered for promotion. [Para 119] [170-G-H; 171-A-H; 172- A-H; 173-A-H; 174-A-H; 175-A-D]
9. RELIEF IN CIVIL APPEAL NOS. 1970-1975 OF 2009 Civil Appeals Nos. 1970-1975 of 2009 are disposed of as follows: E
The restructured cadre of Senior Tax Assistants came into force on 20.01.2003. Appellants are not entitled to have seniority determined in respect of vacancies of Inspector which arose prior to 07.12.2002. The appellants are eligible to be considered for promotion from 20.01.2003 and they are entitled to add their service as Data Entry Operator Grade ‘B’ for the purpose of the 2002 Inspector Rules and considered for vacancies to be filled by promotion, which arose after 07.12.2002. The persons in Clause (a) under Column 12 of the 2002 Rules, are also entitled to be considered for two years from 20.01.2003. Seniority is to be considered based on Rule 5 of the STA Rules. The exercise, as above, if not carried out already shall be carried out. Further promotions based on the above will be granted. However, it is directed that the promotions shall be notional where promotions H
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A have already been effected, however, entitling the parties to seniority and pensionary benefits. The above exercise shall be completed at the earliest. [Para 120] [170-D-G]
10. Civil Appeal No. 1976 of 2009 will stand dismissed. Union of India through Govt. of Pondicherry and B Another v. V. Ramakrishnan and Others (2005) 8 SCC 394 : [2005] 4 Suppl. SCR 291 ; Taherakhatoon (D) By LRS. v. Salambin Mohammad (1999) 2 SCC 635 : [1999] 1 SCR 901 – relied on. Y.V. Rangaiah and Others v. J. Sreenivasa Rao and C Others (1983) 3 SCC 284 – held inapplicable. P. Ganeshwar Rao and Others v. State of A.P. and Others (1988) Suppl. SCC 740 : 1988 Suppl. SCR 805 ; P. Mahendran and Others v. State of Karnataka and Others (1990) 1 SCC 411 : [1989] 2 Suppl. SCR D 385 ; A.A. Calton v. Director of Education (1983) 3 SCC 33 : [1983] 2 SCR 598 ; N.T. Devin Katti and Others v. Karnataka Public Service Commission and Others (1990) 3 SCC 157 ; K. Ramulu (Dr.) and Another v. (Dr.) S. Suryaprakash Rao and Others E (1997) 3 SCC 59 : [1997] 1 SCR 287 ; Deepak Agarwal and Another v. State of U.P. and others (2011) 6 SCC 725 : [2011] 4 SCR 149 ; M.I. Kunjukunju and Others v. State of Kerala and Others (2015) 11 SCC 440 ; State of Tripura and Others v. Nikhil Ranjan F Chakraborty and Others (2017) 3 SCC 646 – referred to. Case Law Reference (1983) 3 SCC 284 held inapplicable Para 38 [1988] Suppl. SCR 805 referred to Para 46 G [1989] 2 Suppl. SCR 385 referred to Para 46 [1983] 2 SCR 598 referred to Para 46 (1990) 3 SCC 157 referred to Para 46
H [1997] 1 SCR 287 referred to Para 48
D. RAGHU AND OTHERS v. 95 R. BASAVESWARUDU AND OTHERS
[2011] 4 SCR 149 referred to Para 49 A (2015) 11 SCC 440 referred to Para 53 (2017) 3 SCC 646 referred to Para 54 [2005] 4 Suppl. SCR 291 relied on Para 100 [1999] 1 SCR 901 relied on Para 106 B
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1970- 1975 of 2009. From the Judgment and Order dated 02.03.2005 of the High Court of Andhra Pradesh at Hyderabad in Writ Petition Nos. 7963, C 11090, 18501, 20108, 20890 of 2004 and Writ Petition (SR) No. 119787 of 2004 in Writ Petition No. 4444 of 2005. With Civil Appeal No. 1976 of 2009. D C. U. Singh, P. S. Patwalia, Devadatt Kamat, K. Radhakrishnan, Sr. Advs., Brahamadandi Ramesh, Mrs. K. Radha, K. Maruthi Rao, Praveen Agrawal, M.Vijaya Bhaskar, Mohan Rao, Abhijit Sengupta, Rajesh Inamdar, Javedur Rahman, Aditya Bhatt, Aswin G. Raj, Rauf Rahim, Ms. Shrinidhi Rao, Ms. Sunita Rani Singh, Ms. Sakshi Kakkar (for B. Krishna Prasad), Sridhar Potaraju, Ms. Shweta Parihar, E Ms. Shiwani Tushir, Ms. G. Usha Sri, T. Vishnu Menon, Mrs. Anjani Aiyagari, T. V. Ratnam, V. N. Raghupathy, Advs. for the appearing parties.
Judgment
The Judgment of the Court was delivered by F K. M. JOSEPH, J.
11. Civil Appeal Nos. 1970-1975 of 2009 and Civil Appeal No. 1976 of 2009, having been heard together, and as there are certain common issues, they are being disposed of by the following common Judgment. G
22. In Civil Appeal Nos. 1970-1975 of 2009, the controversy revolves around the entitlement to promotion to the post of Inspector of Central Excise. In Civil Appeal No. 1976 of 2009, on the other hand, the controversy relates to the right to be promoted to the post of U.D. Clerk and Tax Assistant in the Central Excise Department. Both these H
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A cases arise out of Original Applications (O.A.s) filed before the Central Administrative Tribunal (CAT), Hyderabad and the Orders of the Tribunal in the cases being questioned in a batch of Writ Petitions. As far as Civil Appeal Nos. 1970-1975 of 2009 are concerned, the CAT allowed O.A. 1362 of 2002 and directed the appellants in Civil Appeal B Nos. 1970-1975 of 2009 to be considered for promotion to the post of Inspectors. They were originally recruited as Data Entry Operators (DEOs) Grade ‘A’ and had been working as Data Entry Operators Grade ‘B’ from the year 2000. In short, the appellants, as applicants before the Tribunal, had called in question the legality of Notice dated 05.11.2002 seeking to confine the promotion to the post of Inspector, C to category of Tax Assistant, Upper Division (UD) Clerk, Stenographer Grade-II, etc., with certain years of experience, for promotion. Six Writ Petitions came to be filed, including by the Union of India and the official respondents, challenging the said verdict by which the appellants were also directed to be considered. A Division Bench of the High Court D proceeded to consider the matter. Justice G. Bikshapathy wrote an opinion allowing the Writ Petitions, setting aside the Order of the Tribunal. The other learned Judge, who constituted the Division Bench, wrote a separate concurring Judgment, and thus, the Writ Petitions came to be allowed. What is found by the High Court is that the Writ Petitioners were having a legal right, under the erstwhile Rules which E were made in the year 1979, to be considered for promotion to the vacancies which arose prior to the Rules which came to be made with effect from 07.12.2002 in regard to the post of Inspector. The High Court also found that it was only when the Rules were made in the year 2003 that the restructuring in the Department, to which the Cabinet F gave its approval on 19.07.2001, came into effect. Regarding vacancies arising after 07.12.2002, it was left undecided.
33. As far as Civil Appeal No. 1976 of 2009 is concerned, it arises from O.A. 1040 of 2003, again decided by the CAT, Hyderabad.
44. The impugned Order of the High Court reveals that the High G Court allowed the Writ Petition filed against the Order of the Tribunal following the Judgment of the High Court in the Writ Petitions which formed the subject matter of the controversy relating to Inspectors and which is the subject matter of Civil Appeal Nos. 1970-1975 of 2009. In other words, following the principle that the vacancies must be filled- H up in accordance with the extant Rules, the court found that promotions
D. RAGHU AND OTHERS v. 97 R. BASAVESWARUDU AND OTHERS [K. M. JOSEPH, J.]
to the post of U.D. Clerk and Tax Assistant must be effected on the A basis of the rights crystallized under the 1979 Rules, as amended. A LOOK AT THE RULES THE 1979 RULES REGARDING POST OF INSPECTOR
55. In 1979, the Rules known as the Central Excise and Land B Customs Department Group ‘C’ Posts Recruitment Rules, 1979, came to be enacted (in short, ‘the 1979 Rules’). The Rules were made under Article 309 of the Constitution of India. In the said Rules, apart from the post of Inspector (Senior Grade)(inter alia) with a scale of pay of Rs. 550-25-750-E.B.-30-900, which is shown as a post to be filled-up by promotion, there is the post of Inspector (Ordinary Grade). It is this C post which has generated the controversy in Civil Appeal Nos. 1970- 1975 of 2009.
66. The Method of Recruitment is mentioned as follows: a) 75 per cent by Direct Recruitment; D b) 25 per cent by Promotion. Column 12, which relates to the Grade from which Feeder Category for promotion is shown as follows: In case of recruitment by promotion/deputation/transfer grade from which promotion/ deputation/ transfer to be made E 12 Promotion: By selection from amongst: (i) Upper Division Clerks with 5 years service. F
(ii) Upper Division Clerks with 13 years of total service as UDC and Lower Division Clerk taken together subject to the condition that they should have put in a minimum of two years service in the grade of Upper Division Clerks; G
(iii) Stenographers (Senior Grade) with 2 years service. (iv) Stenographers (Senior Grade) or Steno (Ordinary Grade) with 12 years service as Stenographer/ H
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A Upper Division Clerk and Lower Division Clerk if any taken together subject to the condition that they should have put in a minimum of two years service as Stenographer (Ordinary Grade) or Upper Division Clerk. B (v) Woman searcher with 7 years service in the grade. (vi) Draftsman with 7 years service in the grade.Note: Candidates will be required to possess such physical standard and pass such written test and C practical tests and confirm to such age limits as may be specified by the Central Board of Excise and Customs from time to time. THE ELECTRONIC DATA PROCESSING DISCIPLINE (GROUP-E TECHNICAL POST) RECRUITMENT RULES, D 1992
77. On 03.04.1992, Rules were made regulating the method of recruitment for Group ‘C’ (Technical Post) in the Electronic Data Processing Discipline of the field formations of the Central Board of Excise and Customs (CBEC). The posts included the post of Data Entry E Operator Grade ‘A’, Data Entry Operator Grade ‘B’ and the post of Data Entry Operator Grade ‘C’. Under Rule 5 under the heading “Initial Constitution”, persons appointed on regular basis as Key Punch Operator, Terminal Operator and Lower Division Clerk performing the duties of Terminal Operator before the commencement of these Rules F were to be deemed to have been appointed as Data Entry Operator Grade ‘A’ and to rank enblock senior to those appointed after the commencement of these Rules. The post of Data Entry Operator Grade ‘A’ was to be filled-up by Direct Recruitment. The educational qualification was shown as 12th Standard Pass or equivalent. The post of Data Entry Operator Grade ‘B’ was to be filled-up by promotion, failing which, by transfer on deputation. As far as promotion is concerned, Data Entry Operators Grade-A, with six years Regular Service in the Grade, were rendered eligible for being considered for promotion. As far as Data Entry Operators Grade ‘C’ is concerned, again the post was to be filled-up by promotion, failing which, by transfer on deputation, Data Entry Operators Grade ‘B’, with 3 years Regular
D. RAGHU AND OTHERS v. 99 R. BASAVESWARUDU AND OTHERS [K. M. JOSEPH, J.]
Service, were declared eligible for being considered for promotion as A Data Entry Operator Grade ‘C’. There is also the post of Data Entry Operator Grade ‘D’, to be filled-up by promotion, failing which, by transfer on deputation. Data Entry Operator Grade ‘C’, with four years regular service, was Feeder Category for promotion as Data Entry Operator Grade ‘D’. B THE 1996 AMENDMENT TO THE 1979 RULES
88. On 12.07.1996, the 1979 Rules came to be amended. Under the said amendment, the post of Tax Assistant was included. 1497 posts were shown as the number of posts, subject to variation dependent on workload. The scale of pay was indicated as Rs. 1350-30-1440-40-1800- C E.B.-50-2200. The post was to be filled-up by promotion. The Feeder Category was to be U.D. Clerk, with three years regular service in the Grade, subject to their passing of Departmental Examination, with minimum marks of 40 per cent and above, in each paper. THE CENTRAL EXCISE AND LAND CUSTOMS D DEPARTMENT INSPECTOR (Group ‘C’ POSTS) RECRUITMENT RULES, 2002
99. By Notification dated 29.11.2002, Rules were made in supersession of the 1979 Rules. The Rules are called the Central Excise and Land Customs Department Inspector (Group ‘C’ posts) Recruitment E Rules, 2002 (hereinafter referred to as ‘Inspector Rules, 2002’, for short). The Rules were to come into force on the date of publication in the Official Gazette. It is not in dispute that the publication of the Gazette is effected on 07.12.2002. F
1010. In regard to the post of Inspector (Central Excise), under Column 11, viz., Method of Recruitment, the Rules proclaim that 66.23 per cent is to be filled-up by Direct Recruitment and 33.13 per cent is to be filled-up by promotion. Column 12 is significant and we refer to the same. It reads as follows: G In case of recruitment by promotion/deputation/absorption, grade from which promotion/ deputation/ absorption to be made 12 H
p. 100
A Promotion: (a) By selection from those candidates working in the following restructured cadres; (i) Tax Assistant with 2 years service as Tax B Assistant or 5 years service as Tax Assistant and Upper Division Clerk put together; (ii) Upper Division Clerk or stenographer Grade III with 5 years service; (iii) Upper Division clerk with 13 years of total service C as Upper Division Clerk and Lower Division Clerk taken together subject to the condition that they should have put in a minimum of 2 years service in the grade of Upper Division Clerk; (iv) Stenographer Grade II with 2 years service; D (v) Stenographer Grade II or Stenographer Grade III with 12 years service as Stenographer or Upper Division Clerk and Lower Division Clerk, if any, taken together subject to the condition that they have completed a minimum of 2 years service as E Stenographer Grade III or Upper Division Clerk. (vi) Woman searcher with 7 years service in the grade; (vii) Draftsman with 7 years service in the grade.
F (b) By selection from those candidates working in the following restructured cadre: (i) Senior Tax Assistant with 2 years regular service in the grade; (ii) Stenographer Grade II with 2 years regular G service in the grade; (iii) Women searcher with 7 years service in the grade; (iv) Draftsman with 7 years service in the grade. H
D. RAGHU AND OTHERS v. 101 R. BASAVESWARUDU AND OTHERS [K. M. JOSEPH, J.]
A (c) Failing the method of recruitment specified under Clause (b) above, by selection from those candidates working as Tax Assistant and Stenographer Grade III having not less than 10 years service including the service to be included for this purpose under the provisions of the rules regulating the method of recruitment to the post of Tax Assistant: Note 1 : Promotion under Clause (a) above shall be only operative for a period of two years from the date on which the restructured cadres mentioned under Clause (b) above comes into existence. The service rendered under the new grade in the restructured cadres shall be counted towards considering the eligibility for promotion under D Clause (a) above. Note 2: Candidates shall be required to pass such written test as may be determined by the Central Board of Excise and Customs from time to time. The maximum age of eligibility for the departmental candidates shall be 45 years which shall be relaxable to 47 years in the case of candidates belonging to the Scheduled Castes or Scheduled Tribes category. However, those of the officials who were not considered for such promotion upto the age of 45 to 47 years, as the case may be, shall be granted the benefit of relaxation in age limit upto 50 years in order to enable a fair opportunity of a minimum of two chances. However, those officials who were considered for promotion upto the age limit of 45to G 47 years, as the case may be, on two or more occasions and were not found fit for promotion shall not be eligible for this relaxation.
H
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A Note 3: Candidates shall be required to pass physical tests and confirm the physical standards as specified in Column 8. Note 4: The eligible officers under Clause (a), (|b) and 9c) above shall be required to pass through an interview before promotion. Note 5: Where juniors who have completed their qualifying or eligibility service are being considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying or eligibility service by more than half of such qualifying or eligibility service or two years, whichever is less and have successfully completed their probation period for promotion to the next higher grade alongwith their juniors who have already completed such qualifying or eligibility service.
CORRIGENDUM DATED 24 TH APRIL, 2003 TO INSPECTOR RULES, 2002
1111. Under the same, in Clause (a) of Column 12, which we have already extracted, for the word “restructured” in third line, it was to be read as “pre-structured”. The result of this amendment is that Clause (a) under Column 12 of the Inspector Rules, 2002, was to be read as by selection of those candidates working in the “pre-structured cadres”. F THE CENTRAL EXCISE AND CUSTOMS DEPARTMENT SENIOR TAX ASSISTANT (GROUP ‘C’ POSTS) RECRUITMENT RULES, 2003(in short S.T.A. Rules, 2003)
1212. The Rules made on 16.01.2003, came into force on the date G of publication of the Gazette and the publication was effected on 20.01.2003. Rule 5, around which debate ensued before us, reads as follows: “5. Initial constitution.-(i)All the persons appointed on the regular basis at the time of commencement of these rules to the Grade H of Assistant, Tax Assistant, Upper Division Clerk (Special Pay),
D. RAGHU AND OTHERS v. 103 R. BASAVESWARUDU AND OTHERS [K. M. JOSEPH, J.]
Data Entry Operator Grade ‘B’ and ‘C’ shall be deemed to have A been appointed as Senior Tax Assistants under these rules. The service rendered by them before commencement of these rules shall be taken into account for deciding the eligibility for promotion to the next higher grade. (ii) Assistants(Rs. 5000-8000) and Data Entry Operator Grade B ‘C’ (Rs. 5000-8000) are being redesignated as Senior Tax Assistants in the same scale of pay. Therefore, the Assistants and Data Entry Operator Grade ‘C’ shall be placed enblock senior to the other categories. However, their inter-se-placement shall be done according to the date from which they had actually been appointed to these grades on regular basis subject to the condition C that their inter se placement in their respective category shall not be altered. (iii) The Data Entry Operator Grade ‘B’ (4500-7000) and Tax Assistants (4500-7000) have been placed in their higher scale of 5000-8000 and they shall be placed below the Assistant and D Data Entry Operator Grade ‘C’ and their inter-se placement shall be fixed in accordance with the date of regular appointment to the respective grade subject to the condition that their inter-se placement in respective category shall not be disturbed. (iv) Upper Division Clerk with special pay shall be placed below E Assistant, Data Entry Operator Grade ‘c’, Data Entry Operator Grade ‘B’ Tax Assistants. (v) The present employees would be required to pass the required or suitable departmental examination, as specified by the Competent Authority, from time to time, in Computer Application F and relevant procedures within two years falling which they would not be eligible for further increments.” THE CENTRAL EXCISE AND CUSTOMS DEPARTMENT TAX ASSISTANT (GROUP ‘C’ POSTS) RECRUITMENT RULES, 2003 G
1313. Lastly, we may notice the Central Excise and Customs Department Tax Assistant (Group ‘C’ Posts) Recruitment Rules, 2003, hereinafter referred to as the 2003, Tax Assistant Rules. Rules are seen to be made on 02.05.2003 and they came into force on their publication in the Official Gazette on 05.05.2003. Rule 4 alone is relevant for our purpose. H
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A “4. Initial Constitution.-(1) The person appointed on regular basis and holding the post of Upper Division Clerk and Data Entry Operator Grade A on the commencement of these rules shall deemed to have been appointed as Tax Assistant under these rules and the service rendered by such persons in the respective posts before commencement of these rules shall be taken into account as regular service rendered on the post of Tax Assistant for the purpose of promotion etc.
(2) The person holding the post of Data Entry Operator Grade - A appointed under these rules as Tax Assistant shall, within two years from the date of such appointment as Tax Assistant, pass the Departmental Examination as conducted by the competent authority, falling which he shall not be entitled to get any further increment.
D (3) Any person, who holds a post of Lower Division Clerk on regular basis and falls within the seniority list as determined by the appointing authority at the commencement of these rules shall, on passing the Departmental Computer Proficiency examination conducted by the appointing authority, be deemed to have been promoted with effect from date of passing such examination on the post of Tax Assistant.
(4) The Upper Division Clerks and Data Entry Operator Grade – A shall be placed en-block senior and, their inter se placement shall be fixed in accordance with the date of regular appointment to the respective grade subject to the condition that their inter se placement in the respective grade shall not distributed.
(5) Lower Division Clerks shall be placed below Upper Division Clerks and Data Entry Operator Grade – A.”
1414. The Method of Recruitment is Direct Recruitment in regard to 90 per cent of the vacancies and 10 per cent posts to be filled-up by promotion. Feeder categories, in regard to promotion, are shown as Lower Division Clerks, Head Hawaldars, who had rendered seven years of service in the Grade on regular basis and who possesses certain H qualifications which are mentioned therein.
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IN-BETWEEN THE RULES A
1515. On 11.03.1988, one-third of the posts of U.D. Clerks came to be abolished and a Grade of Tax Assistant came to be created. Tax Assistants also became part of the Feeder Cadre to the post of Inspector, inter alia. On 05.08.1988, Central Board of Excise and Customs (CBEC) clarified, inter alia, that Tax Assistants, with two B years’ experience in the Grade or five years’ combined service in U.D. Clerk and Tax Assistant, were to be eligible for promotion. Stenographers, Women Searchers, Draftsmen, etc., were also declared eligible for promotion as Inspector. They are the old Tax Assistants and not to be confused with the Tax Assistants under the 2003 Rules. C
1616. The next crucial development took place in the following background. The Data Entry Operators performed essentially technical functions and the very concept was linked with the object of bringing about computerization in the Department. As noticed the initial constitution consisted of Key Punch Operators, Terminal Operators and Lower Division Clerks performing duties of Terminal Operators, who D were deemed to have been appointed as Data Entry Operator Grade ‘A’. The Data Entry Operators began to complain that promotional avenues for Data Entry Operator Grade ‘A’, which is the entry post, was limited to promotions as Data Entry Operators Grade ‘B’, ‘C’ and at the top of the pyramid, Data Entry Operator Grade ‘D’. Persons E working in the Ministerial Cadre, including U.D. Clerks, Stenographers, etc., were eligible under the 1979 Rules, for being promoted to the Executive Post, viz., the post of Inspector, inter alia. Data Entry Operators complained that they would stagnate in the post of Data Entry Operator for years without promotion. It would appear that the post of Data Entry Operator Grade ‘D’ is not available in all the F Commissionerates and only certain Commissionerates had the post of Grade ‘D’. It is pursuant to this simmering discontent being noticed apparently that the Union Cabinet decided to go in for cadre restructuring in the Central Excise and Customs Department. Since, much may turn on the purport of the said decision, articulated in letter G dated 19.07.2001, we advert to the same: “I am directed to say that the Central Government has approved the restructuring of Customs & Central Excise Department. As a result of restructuring there has been a change in the number of nomenclature of the various grades/ posts. The revised number H
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A and designation of the various posts at different level in Customs and Central Excise Department has been indicated in Annexure – I.
2. All the post at different levels as per Annexure-I stand sanctioned with immediate effect. Wherever there is a reduction in the number of posts at any level, such reduction will be effective after the existing incumbents of the posts are promoted to the higher level or the post fall vacant on account of retirement etc. The number of categories of the post other than those referred to in Annexure ‘I’ have been kept in their existing strengths and in their existing pay scales only.
3. No direct recruitment may be made to various grades for the year 2001-2002 without approval of Ministry/ Department as the Cabinet has approved a one time relaxation for filling of all vacancies by promotion in all Cadres.
D 4. The formation-wise distribution of post at different levels will be notified separately.
5. The details of the other Posts that have been included in the restructuring have not been proposed to be altered on the scale or strengths are indicated in Annexure -II. E
6. The Cadres/ Post which have not been included in the Restructuring Proposal are indicated in Annexure – III.
7. This issue in pursuance to the approval conveyed vide Cabinet Secretariat note No. 28/CM/2001 (1) dated 16.07.2001. F Yours faithfully Sd/- (K.C. Jain) G Dy. Secretary to the Govt. of India ANNEXURE – I REVISED NUMBER OF POSTS AT DIFFERENT LEVELS IN THE CUSTOMS AND CENTRAL EXCISE H DEPARTMENT ON RESTRUCTURING
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S.NO. POST EXISTING PAY SCALE POST REDESIGNATED AS PAY SCALE SANCTIONED STRENGTH A A’ EXEC
1. Chie f Commissioner 22400-24500 Chief Commissioner 22400- 47 24500
2. Commissioner 18400-22400 Commissioner 18400- 290 22400
3. Additional Commissioner 14300-18300 Additional 14300- 300 Commissioner 18300
4. Joint Commissioner 12000-16500 Joint Commissioner 12000- 276 16500
5. Deputy Commissioner 10000-15200 Deputy Commissioner 10000- 701 B 15200
6. Assistant Commissioner 8000-13500 Assistant 8000- 690 Commissioner 13500 B’ EXEC
7. SUPDT.CEX/S.I.O 6500-10500 SUPDT. 6500- 9437 /I.O.A.D. D. 10500
8. SUPDT. CUS 6500-10500 SUPDT. 6500- 2520 10500
9. Appraise r 6500-10500 Appraiser 6500- 809 10500 C C’ EXEC
10. Inspe ctor/PO/ 6500-9000 Inspectors 5500-9000 18053 Examiner A’ MIN
11. CAO 8000-13500 CAO 8000- 155 13500 B’ MIN
12. AO/ACAO/EAO 6500-10500 6500- 972 10500
13. Sr .PA 6500-10500 Sr.PA 6500- D 10500
14. Programmer New 6500- 20 10500
15. Others* 177 C’ MIN
16. DOS L-I 5500-9000 DOS L-I 5500-9000 631
1717. DOS L-II 5000-8000 DOS L-II 5000-8000 1353
1818. DEO-GR. D 5500-9000 ASTT. PROG 5500-9000 60
1919. SR. TAX NEW 5000-8000 3152 Assistant E
2020. TAX ASSISTANT NEW 4000-6000 5525
2121. LDC 3050-4590 LDC 3050-4590 717
2222. STENO GR. – I 5500-9000 STENO GR.-I 5500-9000 244
2323. STENO GR. – II 5000-8000 STENO GR- II 5000-8000 490
2424. STENO GR.-III 4000-6000 STENO GR.-III 4000-6000 490
2525. OTHERS* 803 C’ EXEC (OTHERS)
2626. DRIVERS – I 4500-7500 DRIVERS-I 4500-7500 414
2727. DRIVERS – II 4000-6000 DRIVERS – II 4000-6000 526
2828. DRIVERS – III 3200-6000 DRIVERS-III 3200-6000 1130 F
2929. ARMOURER 3200-4900 ASI (Weapon) 3200-4900 51
3030. OTHERS* 55
3131. HAVALDAR 2650-4900 HAVALDAR 2650-4900 4326
3232. SEPOY 2550-3540 SEPOY 2550-3540 9339
3333. OTHERS* 1071
TOTAL 65161
NOTES: G
1. The posts in the grade of Supdts. Also include of S.I.O., A.A.D.I.O. of various directorates (S.I. No.).
2. The posts in the grade of inspector also include the post of P.O. and Examiner and intelligence Officer (S.I. No. 10). H
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A 3. The post in the grade of A.O. also include the post of A.C.A.O. and E.A.O. (Sl. No. 12).
4. The existing post in the cadres of Asst., Tax Asst., UDC (Sp Pay), DEO Gr. (C) and DEO Gr.(B) have been merged into an redesignated as Sr. Tax Asst. (Sl. No. 19).
B 5. The existing posts in the cadres of UDC, DEO(A) and LDC (except 717 posts of LDC for the promotion of Group D) have been merged and redesignated as Tax Asstt. (New) (S.I. No. 20)
6. The cadre of O.S. has been abolished and the post have been C merged in the posts of A.O. (Sl. No. 19)
7. Other posts which exists in the department and are not reflected in the above table have been kept in existing strengths in the existing pay scales only.
D 8. Details of Others posts are given in Annexure II (Sl. No. 15, 25,30 & 33). Sd… (K.C.Jain) Dy. Secretary to Govt. of India” E
17. On 10.09.2001, the CBEC directed a freeze on promotion. It reads as follows: “New Delhi, the 10.09.01 To, F All Chief Commissioners/Commissioners of Customs and Central Excise, All Directors Generals/Directors of Customs and Central Excise Narcotics Commissioner, C.B.N. Gwalior G Subject: Holding of DPC for promotion to the grade of Group ‘B’ & ‘C’ in C.B.E.C. Department – reg. Sir, I am directed to say that the issue of holding of DPCs in respect of Group ‘B’ & ‘C’ posts as well as making direct
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recruitment to the various posts pending distribution of posts of various field formations is being undertaken by the Implementation Cell in Pursuant to sanction issued by Board’s letter F.No.A-11019/72/99-Ad.IV dated 19.07.2001 conveying the approval of the Cabinet to the restructuring of Customs and Central Excise Department has been considered by the Board. B
2. It is felt that if the DPCs for group ‘B’ & ‘C’ are conducted by the cadre authorities it may lead to widening of imbalances in promotion prospects or create imbalances. The Board have, therefore, decided that the holding of DPC of group ‘B’ & ‘C’ post may be frozen and no DPC may be held for Group ‘B’ & ‘C’ post till the distribution of posts under various level is completed and instructions are issued by the Board in this regard.
3. As you are aware that Board have already imposed a ban for filling up of posts of LDCs and Sepoys vide their letter F.No. A-11012/27/2000-Ad. IV dated 10.04.2001, it is reiterated that these instructions may be strictly adhered to and it is further stated that no direct recruitment may be made to any grade till further orders of the Board/ Department of Revenue.
4. The receipt of this letter may please by acknowledged. Yours faithfully, E SD/- (Y.P. Vashishat) Under Secretary to the Govt. of India”
18. Thereafter, there is communication dated 19.09.2001, which F will be adverted to later on.
19. It is necessary to note what is alleged to be an Order of the CBEC, lifting the ban on promotion, dated 03.01.2002: “New Delhi, the 3rd Jan, 2002 G To, All Chief Commissioners/ Commissioners of Customs and Central Excise, All Directors Generals/ Directors of Customs and Central Excise. Narcotics Commissioner, C.B.N. Gwalior H
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A Subject: Holding of DPC for promotion to the grade of Group ‘B’ & ‘C’ in C.B.E.C. Department – reg. Sir, I am directed to refer to Board’s letter of even number dated 10.9.2001 imposing a ban on holding of DPCs for Group ‘B’ & B ‘C’ posts. The Board have received representations against the aforesaid ban on promotions.
2. The matter has been considered by the Board and it has been decided that where ever the DPC, have already been held, the panel prepared by the DPCs may be given effect and the C resultant vacancies in the feeder cadre may also be filled up. Where the DPCs have not been held, the DPCs may be held on the basis of pre-revised strength i.e. the strength existing before the cadre restructuring and the resultant vacancies may be filled up.
D 3. Action may be taken on priority basis under intimation to the Board. Yours faithfully, SD/- E (Y.P. Vashishat) Under Secretary to the Govt. of India”
20. The communication dated 05.06.2002 by the CBEC purporting to allocate posts to each zone, and communicating the sanctioned strength, needs to be noticed: F “F. No. A-11013/4/2002-Ad.IV Government of India Ministry of Finance Department of Revenue G Central Board of Excise & Customs Dated: 05th June, 2002 To All Chief Commissioners of Central Excise and Customs, All Chief Commissioners of Customs, H All Chief Commissioners of Customs (Preventive),
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All Directors General, A All Directors. Chief Departmental Representative, CEGAT Chairman, Settlement Commission. Subject:Allocation of posts in Group ‘A’, ‘B’, ‘C’ and ‘D’ amongst various Zones/Commissionerates and Directorates Gen. / B Directorates – reg. Sir, I am directed to refer to Ministry’s letter F. No A-11019/72/ 99-Ad.IV dated 19th July 2001, notifying the revised sanctioned C strength at different levels in the Central Excise & Customs department consequent to approval of cadre restructuring of Central Excise and Customs departments by the Union Cabinet.
2. I am further directed to say that the allocation of staff to the Zones / Commissionerate / Directorates Gen. / Directorates D at different levels has been decided by the Board and approved by the Government has been detailed in the enclosed Folder. The allocation indicated herein supersedes all earlier allocations in respect of the Cadres/Categories in the enclosed folder. The number and categories of posts in the Central Excise & Customs department other than those referred to in the enclosed Folder E remains unaltered.
3. Separate staff strength has been allocated for the offices of Chief Commissioner, Commissioner (Appeals) and Commissioner (Adjudication) for which no separate staff had been allocated till now. The staff allocated to these formations has been shown along with the allocation to the Commissionerate in which city it is located. The model adopted for the allocation is indicated in Annexure – IV of the enclosed folder.
4. I am also directed to request all Chief Commissioners and other Heads of Department to carefully study the details of reorganization of the Customs and Central Excise formations and bring to the notice of the Board any discrepancies or any aspects that may require review or may not have been taken into account, to enable necessary corrective steps may be taken at an early date with the approval of appropriate authority. H
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A 5. I am further directed to say that the sanctioned strength now indicated supersedes all previous sanction issued so far. The sanctioned strength now indicated will accordingly form your sanctioned strength of Group ‘A’, ‘B’, ‘C’ & ‘D’ posts. As indicated in the preceding paras, the Chief Commissioners are requested to study the allocation of posts within their respective B jurisdiction and send proposal which are considered necessary within the overall sanctioned strength provided to the Commissionerates within their jurisdiction.
6. I am also directed to inform that the Cadre Control which is presently vested with respective Commissioners in particular C Zones will continue to vest with them for the present in order to ensure that there is no dislocation in the cadre management at the field level. Switch over of cadre control from Commissioners to Chief Commissioners would be effected from a date to be specified after the new formations come into existence. D
7. It has been decided to extend the ban on direct recruitment imposed, in terms of para 3 of Deptt’s letter F. No. A-11019/72/ 99 Ad.IV dated 19.07.2001 upto 31.12.2002. However, the ban would be applicable only to the posts that have been included in the cadre restructuring. It has also been decided that the ban on direct recruitment would not apply to compassionate ground appointments made with the approval of the Board.
8. The Detailed instructions/ orders/ Recruitment Rules governing the manner of filling up of the vacancies at all levels will be issued separately. No vacancy in respect of the posts included in the cadre restructuring should be filled up till such time as further orders are issued. Yours faithfully Encls.: As above G (Y.P.Vashishat) Under Secretary to the Govt. of India”
21. Still further, on 19.09.2002, the CBEC initiated process for filling-up of vacancies based on the post restructuring strength and permitting convening of Departmental Promotion Committees (DPCs) H where the revised Recruitment Rules stood circulated. It was, however,
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clarified that promotion orders would be issued only on the directions A of the Ministry. That ban on Direct Recruitment was to continue. The Order reads as follows: “New Delhi, Dated 19th September, 2002 To All Chief Commissioner of Central Excise, B All Chief Commissioner of Customs, All Chief Commissioners of Customs (Preventive), All Director General, All Directors, The Chief Department Representative CEGAT C The Chairman, Settlement Commission. Sir, Subject: Filling up of posts in Group B, C and D – reg. I am directed to refer to Ministry’s letter F.No.A-11013/4/ D 2002-Ad. IV dated 05.06.2002 on he allocation of posts in Group ‘A’, ‘B’, ‘C’ and ‘D’ amongst various Commissionerates and Directoraes General/ Directorates. So far as Group ‘A’ posts suitable action is being taken by the Board. As for remaining posts, you have already been advised o hold DPCs for promotion to the grade of Superintendents of Central Excise, E Superintendents of Customs (Prev) vide our letter no. F.A.600/ 11/23-2002-Ad. III B dated 26th June, 2002 and to the grade of AO/ACAO/EOA Group ‘B’ vide letter F.No.A.32012/3/2002- Ad.IIB dated 15th July, 2002. The cadre of O.S. is to be merged with the cadre of A.O. and all the existing O.S. are only to redesignated as Administrative Officer. Since the pay scale of both he cadres is same, the re-designation can be done by an administrative order.
2. It has now been decided to initiate the process of filling up of vacancies that has arisen on account of cadre restructuring in all remaining cadres up to Grade ‘B’. You are directed to ensure that DPCs are converted in respect of all grades where Recruitment Rules except for change in the number of posts, as also grades where revised Recruitment Rules have been circulated. You may accordingly hold DPCs immediately for filling up vacancies in various grades, and ensure that by 30 th H
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A September, 2002 the lists are kept ready. It is clarified that promotion orders may be issued only on receipt of further directions from the Ministry.
3. The ban imposed on direct recruitment in terms of para-3 of letter F.No.A.11019/72/99-Ad.IV dated 19.07.2001 is applicable up to 31.12.2002. IT is clarified that this ban applies only to the posts that have arisen in the cadre restructuring and that the ban will not apply to posts in the lower grades which are not to be filled by promotion, and can only be filled up by promotion, and can only be filled up by Direct Recruitment. Requisite steps for filling up Direct Recruitment posts may also be initiated immediately in accordance with existing instructions on the subject so as to ensure that Direct Recruitment vacancies can immediately be filled up after 31.12.2002 of Board’s letter of 05.06.2002.
4. Further, in suppression of the instruction contained in para D 7 & 8 of Board’s letter of 05.06.2002 the Commissioners are also permitted to make compassionate ground appointments as well as inter Commissionerate transfers, with the approval of Chief Commissioners, in accordance with existing instructions on the subject. The instructions contained in paras (7) & (8) of E Board’s letter of even no. dated 05.06.2002 stand modified to this extent. Yours faithfully, (NISHA MALHOTRA) Jt. Secy. (Admn.)” F
22. The communication dated 28.10.2002 is the next development. It reads as follows: “Dated 28th October, 2002 To G All Chief Commissioner of Customs & Central Excise Subject:Draft Recruitment Rules – Circulation of reference and necessary action-Reg. Sir, H Please find enclosed Draft Recruitment Rules for Group ‘C’ Posts
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of Inspector (Central Excise & Land Customs), Inspector A (Examiner), Inspector (Preventive Officer) & Senior Tax Assistant as approved by the Ministry. Notifications, notifying these Rules will be issued shortly. Meanwhile you may initiate the necessary action to start the process for DPC etc. You may, however, await issue of notifications before issue of any orders B of promotions based on these Rules. Draft of the Recruitment Rules of Tax Assistants will also be sent shortly as they are being finalized in consultation with law Ministry. Yours faithfully, C Sd……
(B.K. Gupta) O.S.D. (Admn.) CBEC D Enclosures: As above”
23. On 06.11.2002, the Draft Recruitment Rules for Tax Assistant came to be forwarded with the caveat that promotion orders be not issued until the Rules were notified: “Dated 6th November, 2002 E
To All Chief Commissioner of Customs & Central Excise Sir, Subject: Draft Recruitment Rules – Circulation of reference and F necessary action-Reg. — In continuation of this office letter dated 28.10.2002 forwarding of Draft Recruitment Rules of Group “C” Post of Inspector G (Central Excise and land Customs), Inspector (Examiner), Inspector (Preventive Officer) & Senior Tax Assistant, please find enclosed Draft Recruitment Rules for Tax Assistant (Group “C”) as approved by the Ministry. The Notification for notifying these Rules will be issued shortly. Meanwhile you may get circulated these Draft Rules to all the Commissionerates, initiate H
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A the necessary action to start the process for DPC etc. Confirm the issue of Notification notifying these Rules before issue of any order based on these Rules. Yours faithfully Enclosures: As above B (B.K. Gupta) O.S.D. (Admn.) CBEC”
24. On 14.11.2002, the CBEC permitted issuance of promotion orders subject to certain conditions: C “New Delhi the 14th November 2002 To All Chief Commissioner All Director General All Director under CBEC D Subject : Cadre restructuring of Customer and Central Excise – regarding promotion in the Grade ‘B’, ‘C’ and ‘D’ posts. Sir, I am directed to refer to Minister’s letter F. No. A-11013/01/ E 2002-AdIV dated 19th September, 2002 regarding holding of DPC’s in all grade where Recruitment Rules Exits, us also in grades where revised recruitment rules have been circulated. In terms of Para 2 of the said letter, it was directed to hold the DPC’s by 30th September, 2002 and keep the list ready for issue. F It was also clarified that promotion orders may only be issued on receipt of further directions from Ministry.
2. In view of the above, you are requested to issue the promotion orders in respect of remaining Group ‘B’, ‘C’ and ‘D’ posts as stated below:- G (i) promotion orders in respect of Sepoy, Havaldar, Head Havaldar, Tax Assistant, Senior Tax Assistant and Inspector of Central Excise/Preventive Officer/ Examiner of Customs may be issued on the basis of Recruitment Rules after allotment of GSR No by the H Government of India Press. Wherever not yet allotted.
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(ii) DPC in respect of Appraisers and Administrative A Officer may be held on the basis of existing Recruitment Rules and promotion orders may be issued. (iii) DPC in respect of remaining grades except DOS L-II may be held on the basis of existing Recruitment Rules and Promotion orders may be issued by 25.11.2002. B (iv) Promotion in the grade of DOS L-II may be made only after the new recruitment rules are circulated by the Ministry. Yours faithfully C
(Angra Ram) Under Secretary to the Government of India”
25. Thereafter, as already noticed, the Inspector Rules, 2002 D came to be notified on 07.12.2002. We may further notice that the Senior Tax Assistant (STA) Rules came to be notified on 20.01.2003. On 21.04.2003, the following decision was taken by the CBEC: “New Delhi, the 21st April, 2003 To, E
All Chief Commissioners of Central Excise, All Chief Commissioners of Customs, All Director Generals, All Commissioner of Central Excise/Customs/Directors under CBEC F
Subject:Cadre Restructuring of Customs and Central Excise – Fixation of date of Existence of restructured cadres-reg. Madam, G I am directed to say that clarification have been sought by field formations regarding the date of existence of restructured cadres. The matter has been examined in the Board and it has been decided that the restructured cadres would come into existence from the dates on which the new/amended rules are notified. Accordingly H
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A (a) The restructured cadre of Inspector (Central excise), Inspector (Preventive Office) and Inspector (Examiner) came into effect on and from 07.12.2002 i.e., the date of publication of Recruitment Rules. (b) The restructured cadre of Senior Tax Assistant came B into existence on and from 20.01.2003 i.e. the date of publication of Recruitment Rule. Yours faithfully, SD/- (Y.P. VASHISHAT) C Under Secretary to the Govt. of India” THE SPATE OF LITIGATION
26. The position, as noticed, led to a scenario where the erstwhile Data Entry Operators Grade ‘B’ and ‘C’, who came to be re- designated as Senior Tax Assistants (STAs) and who were not invited D to participate in the promotional exercise for the post of Inspector, launched litigation in various Tribunals across the country. THE PROCEEDING IN THE CHANDIGARH TRIBUNAL
27. O.A.1221 of 2002 came to be filed before the Tribunal at E Chandigarh. The applicants were Data Entry Operators Grade ‘A’, who were promoted in the year 2000 as Data Entry Operators Grade ‘B’. They contended that they being Data Entry Operators Grade ‘B’, were deemed to have been appointed as Senior Tax Assistants and were eligible to be considered for the post of Inspector. They were also placed in the higher Grade of Rs.5000 to 8000 and were senior to the U.D. F Clerks. The applicants Complained that though they were eligible to be considered for promotion to the post of Inspector, Central Excise along with the candidates of the pre-structured cadre, they were not being considered. The Tribunal found merit in the contention of the applicants and held as follows: G “10. There is no doubt that the Data Entry Operators Grade B have now been redesignated as Senior Tax Assistants Recruitment Rules, 2002. It is also very clearly mentioned in the notification in para 4(i) that the service rendered by them before commencement of these rules shall be taken into consideration H for deciding the eligibility for promotion to the next higher grade.
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According to the Inspector Recruitment Rules, 2002, under A Clause (b)(i) of schedule to these rules, Senior Tax Assistants with 2 years regular service are eligible for consideration for promotion. In other words, Data Entry Operators Grade b with 2 years service as Data Entry Operator and/or Senior Tax Assistants are eligible promotion. There is no such condition in the Recruitment Rules, that the categories of employees covered under clause (b) under column 12 of the schedule are required to put in 2 years of service exclusively as Senior Tax Assistant. Their past service as Data Entry Operators is also required to be taken into consideration. In fact the respondents are relying on the provision made in Note 1 under col.12 to emphasize that the Senior Tax Assistants will be considered for promotion only after 2 years from the date of restructured cadres come into existence. Note 1 reads as under: Note 1: Promotion under clause (a) above shall be operative only for a period of two years from the date or which the restructured cadres mentioned under clause (b) above come into existence.” A close reading of the above Note would reveal that it is in respect of employees covered under Clause (a) and is not relevant to the employees under Clause (b). It is therefore, wrong to interpret the provision made in the above Note that Data Entry E Operators (now redesignated as Sr.Tax Assistants) are not eligible for promotion for a period of 2 years. In fact, Senior Tax Assistant have been given higher grade of Rs.5000-8000 and they are senior to the UDCs according to the Senior Tax Assistant Recruitment Rules, 2002, while UDCs have been considered for promotion for the post of Inspector, there does not appear to be F any justification for denying senior Tax assistants their legitimate right for consideration for promotion.
11. Note 2 under col.12 specifically provides that the candidates shall be required to pass such written test as may be determined by the Central Board of Excise and Customs from time to time. G The judgment in the case of Madan Singh & ors (supra) cited by the learned counsel for the applicant is, therefore, distinguishable to the extent that the departmental examination is prescribed in the relevant rules in the instant case. Senior Tax Assistants are, therefore, required to pass the written test before H
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A they are considered for promotion to the post of Inspector as has been done in the case of other categories employees. As Sr. Tax Assistants are senior to UDCs, they should also have been given an opportunity to appear in the departmental written examination and if they had passed, they should have been considered for promotion to the post of Inspector. Non- B consideration of Sr. Tax Assistants for promotion is, therefore, in violation of the relevant Rules.”
28. On the basis of the aforesaid discussion, the Tribunal directed applicants to be considered for promotion as Inspector, in terms of the relevant Rules, considering the service rendered by them as Data Entry C Operator Grade ‘B’, after giving them an opportunity to appear in the departmental examination, as provided in Note 2 in the Schedule to the Inspector Rules, 2002, inter alia.
29. The next, in the chronological order, is the Order dated 29.08.2003 passed by the CAT at Bombay. This decision went against D the reasoning adopted by the Chandigarh Bench, which we have already noted. However, the High Court of Bombay, by its Judgment dated 07.10.2003, allowed the Writ Petitions filed against Order dated 29.08.2003. The High Court found the reasoning of the Chandigarh Bench appealed to it. No doubt, it related to filling-up the post of E Inspector (Customs). The Special Leave Petition filed against the Judgment of the High Court of Bombay came to be dismissed on 09.02.2004 by this Court. In the interregnum, CAT, Madras, by Orders dated 04.09.2003 and 12.09.2003, adopted the view accepted by the Chandigarh Bench. Finally, CAT, Ahmedabad also, by its decision dated F 07.05.2004, accepted the view propounded by the CAT, Chandigarh. THE LITIGATION BEFORE US ORIGINAL APPLICATION NO. 1362 OF 2002
30. The applicants, as already noticed, are the appellants in the Civil Appeal Nos. 1970-1975 of 2009. They approached the Tribunal G on the following allegations, inter alia. They had been appointed as Data Entry Operator Grade ‘A’ between October, 1993 to March, 1994. On completion of six years’ service, they came to be promoted as Data Entry Operator Grade ‘B’. After completing the desired computerization, they were entrusted with regular work relating to the H Executive Side. This included technical work, statistics, preventive audit
D. RAGHU AND OTHERS v. 121 R. BASAVESWARUDU AND OTHERS [K. M. JOSEPH, J.]
and other legal work. They claimed that they were at par with the existing Tax Assistants. After the Fifth Central Pay Commission, they stood equated with the Tax Assistants. There were grievances raised relating to promotional avenues not being on par as between the Data Entry Operators and the Tax Assistants. There was reference made to the Order dated 19.07.2001. It was pointed out that the official respondent had communicated the Draft Recruitment Rules, which contained “an unconscionable condition”. The unconscionable condition referred to was the incorporation of Clause (a) that those working as Tax Assistants with two years of service, etc., were given preference for promotion over the restructured categories. They contended that Order dated 19.07.2001 had already come into force. They pointed out that there was no meaning in considering the pre-structured Cadre of Tax Assistants and U.D. Clerks, etc., after the restructuring [Apparently, they felt aggrieved by the invitation to the Tax Assistants and U.D. Clerks, based on the provisions contained under 2002 Rules (Column 12, Clause (a))]. The proposed promotion was dubbed as an attempted backdoor entry. It was only the restructured Cadre of Senior Tax Assistant (STA) alone, which was eligible for promotion as Inspector. The pre-structured Cadre should not be allowed to steal a march over the applicants, who were already placed in the higher scale. The unconscionable part of the Rules was dubbed as violative of Articles 14 and 16 of the Constitution of India. In the grounds, they attacked E Note 1 to 2002 Rules found in Column 12. The Note was alleged to have given “leverage to the Tax Assistants and the U.D. Clerks and Stenographers to count their pre-structured service”. Being new Cadre, they could not have required period of two years under the restructured Cadre. The Draft Recruitment Rules were impugned as being issued F with “malafide intention” for creating avenues for the “ineligible Lower Division Cadre”. It is also contended that Draft Rules had not been finalised, and only after finalisation, the matter could be proceeded with.
31. The reliefs sought were as follows: “(a) to set aside the intimation letters C.No.II/3/21/2002 Con. G Sec. C.No. II/3/16/2003-Con. Sec. & C.No. II/03/52/ 2002 Estt. All dated 5.11.2002 conducting physical Test/ interviews, in the absence of finalization of draft recruitment rules, on the basis of the unconscionable conditions stipulated in the draft recruitment rules for the purpose of promoting the in-eligible candidates, H
p. 122
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