J. Selvaraj and Others vs Union of India (UOI) and Others

D. Hariparanthaman, J.—The petitioner in W.P. No. 31428 of 2005 is one of the respondents in O.A. No. 409 of 2003. The petitioners in

W.P. No. 31729 of 2005 are also some of the respondents in the said O.A. No. 409 of 2003. These writ petitions are to quash the order dated

19.09.2005 passed in O.A. No. 409 of 2003 of the Central Administrative Tribunal (shortly the Tribunal). Since the facts involved in both the writ

petitions are common, common order is passed.

The petitioners in O.A. No. 409 of 2003 were all working either as Data Entry Operators - Grade ""B"" in the scale of Rs. 4500 � 7000 or

Data Entry Operators � Grade ""C"" in the scale of Rs. 5000 � 8000. The writ petitioners in both the writ petitions were either Tax Assistants in

the scale of Rs. 4500 � 7000 or Upper Division Clerks (Special Pay) in the scale of Rs. 4000 � 6500. The petitioners, i.e. erstwhile Data

Entry Operators, in O.A. No. 409 of 2003 are belonging to technical side whereas the petitioners, i.e. Upper Division Clerks and Tax Assistants

in the writ petitions are belonging to ministerial side.

A massive restructuring of cadres took place in the respondent Department during 2001 � 2003. In view of the restructuring of the

Department, a decision was taken to re-designate the Data Entry Operators � Grade ""C"", Data Entry Operators � Grade ""B"", Tax Assistants

and Upper Division Clerks (Special Pay) as Senior Tax Assistants.

The Government of India, Ministry of Finance, Department of Revenue, Central Board of Excise and Customs, in their letter dated 05.06.2002,

notified the revised sanctioned strength at different levels in the Central Excise and Customs Department, the respondent herein, consequent to the

approval of cadre restructuring of Central Excise and Customs Department by the Union Cabinet. The said letter is in terms of the Ministry''s letter

F. No. A-11019/72/99-Ad.IV dated 19.07.2001. Paragraph No. 5 of the said letter makes it clear that the sanctioned strength indicated theirin

supersedes all previous sanction issued so far. The sanctioned strength indicated in the letter is the sanctioned strength of Group ""A"", ""B"", ""C"" and

D"" posts. Paragraph No. 8 of the said letter gave a clear direction in the following words:

No vacancy in respect of the posts included in the cadre restructuring should be filled up till such time as further orders are issued.

The cadre strength of Inspector (Preventive Officer) for the Chennai Customs Zone was fixed at 220 as per the said letter dated 05.06.2002 of

the Government of India. We are concerned in this case the said post of Inspector (Preventive Officer) belonging to Group ""C"" cadre.

In the said background, the Government of India sent a letter in F. No. A-12018/48/2000-AD-III-B dated 28.10.2002 to all the Chief

Commissioners of Customs and Central Excise enclosing Draft Recruitment for Group ""C"" posts of Inspector (Preventive Officer) and Senior Tax

Assistants as approved by the Ministry. The said letter further states that Notifications, notifying these Rules would be issued shortly. A direction

was also given to all the Chief Commissioners of Customs and Central Excise to initiate necessary action to start the process for DPC etc. in the

meanwhile. However, it was further directed that they should await issue of Notifications before issue of any orders of promotion based on the

Recruitment Rules.

Thereafter, the Customs Department Inspector (Preventive Officer)(Group ""C"") Posts Recruitment Rules 2002 was issued on 29.11.2002

under Article 309 of the Constitution in suppression of the Customs Department (Group ""C"") Recruitment Rules 1979. Likewise, the Central

Excise and Customs Department Senior Tax Assistant (Group ""C"" Posts) Recruitment Rules 2003 was issued on 16.01.2003. Rule 5 of the 2003

Rules is relevant for the purpose of our case, which is extracted here-under:

5.Initial constitution. - (i) All the persons appointed on the regular basis at the time of commencement of these rules to the Grade of Assistant, Tax

Assistant, Upper Division Clerk (Special Pay), Data Entry Operator Grade ""B"" and ""C"" shall be deemed to have 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 ""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 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 Data Entry Operator Grade ""C"" and their inter-se placement shall be fixed in accordance with the

date or 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 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 and relevant procedures within two years failing which they would not be eligible for further increments.

Thus, in view of the Rule 5, the Data Entry Operators in Grade ""C"" are treated as seniors and they are placed enblock above the Tax Assistants

and Upper Division Clerks belonging to Ministerial side.

On 31.10.2002, the first respondent called for willingness from the Ministerial side employees for promotion to the post of Preventive Officer

under 1979 Rules and the said Rule was superseded in the later Rules notified on 29.11.2002 as stated above. This led to the filing of the Original

Application in O.A. No. 995 of 2002 by the Data Entry Operators belonging to Grade ""B"" and ""C"", who were in the process of re-designation as

Senior Tax Assistants in the restructured cadre. The prayer in O.A. No. 995 of 2002 is as follows:

It is therefore prayed that this Hon''ble Court may be pleased to direct the Respondents to consider the applicants for promotion to the post of

Inspector (PO/Examiner) in terms of Rule 5 of the Recruitment Rules for the post of STAs read with the Recruitment Rules for the post of

Inspector (PO/Examiner) and pass such further or other orders.

The new Inspector (Examiner) Recruitment Rules is in similar lines as that of Inspector (Preventive Officer) and for both Inspector (Preventive

Officer) and Inspector (Examiner), restructured Senior Tax Assistant is the feeder category. Some of the Data Entry Operators filed O.A. No.

495 of 2003 that is relating to Inspector (Examiner).

The O.A. Nos. 995 of 2002 and 495 of 2003 were allowed by a common order dated 04.09.2003.

In the meantime, the first respondent by an order dated 19.12.2002 promoted 95 Tax Assistants/Upper Division Clerks/Stenographers

including the writ petitioners as Preventive Officers on regular basis, pursuant to the willingness called for through the letter dated 31.10.2002

referred to above. This lead to the filing of another Original Application before the Tribunal in O.A. No. 409 of 2003 by the Senior Tax Assistants

in the re-structured cadre, who were earlier Data Entry Operators in Grade ""B"" and ""C"" to quash the promotions given to 30 persons among the

95 persons on the ground that the 30 persons were juniors to them and also that they were not considered for promotion for the post of Inspector

(Preventive Officer), though they are seniors and also that those 30 persons were in excess of the cadre strength fixed by the Ministry in the

notification referred to in the letter dated 05.06.2002 of the Government of India, Department of Revenue, Central Board of Excise and Customs.

Those 30 persons were arrayed as respondents in O.A. No. 409 of 2003 and some of them are writ petitioners herein.

The Tribunal allowed the O.A. No. 409 of 2003 by an order dated 19.09.2005, which is impugned in the present writ petitions.

The Tribunal allowed the O.A. No. 409 of 2003 mainly on the ground that the order in O.A. No. 995 of 2002 attained finality as the writ

petition in W.P. No. 31246 of 2003 filed by the Department as well as the writ petition in W.P. No. 2880 of 2003 filed by the contesting parties

were withdrawn. Paragraph Nos. 12 and 13 of the order of the Tribunal are extracted here-under in this regard:

It is now submitted that the Writ Petition No. 31246 of 2003 filed by the Department had been withdrawn vide order dated 19.10.2004. The

Writ Petition No. 2880 of 2003 filed by the contesting private respondents was sought to be withdrawn and a letter was given to the Registry of

the High Court on their behalf but the same could not be posted for administrative reasons.

In the above circumstances, it is seen that the order passed by this Tribunal in O.As.495 of 2003 and 995 of 2002 has become final and are to

be implemented by the respondents. We wish to add that we fully agree with the view taken by the Tribunal in the order dated 4.9.2003 in

O.As.495 of 2003 and 995 of 2002. Accordingly, we hold that the applicants are eligible to be considered for promotion to the post of Inspector

(PO).

Further, the Tribunal recorded a finding that while 95 persons were promoted as Preventive Officers, 30 among them were in excess of the

cadre strength. In conclusion, the Tribunal referred to the letter dated 05.06.2002 of the Government of India, Ministry of Finance, Department of

Revenue, Central Board of Excised and Customs, fixing cadre strength of Inspector (Preventive Officer) at 220, while the Department filed reply in

O.A. No. 409 of 2003 admitting that the promotion process was initiated to fill up the 95 vacancies within the assumed sanctioned strength of 266

including 46 posts of Air Customs Officers i.e. While the cadre strength of Inspector (Preventive Officer) was 220, assuming the cadre strength at

266 and filling the post in excess of 220 to the extent of 30 was held as illegal by the Tribunal.

The writ petitioners, while filing the present writ petitions faced with the difficulty of the facts stated by the Tribunal in paragraph No. 12 of the

order, pleaded that the common order dated 04.09.2003 in O.A.Nos.995 of 2002 and 495 of 2003 was put to challenge in W.P. No. 28333 of

2003 by the Ministerial staff who acquired promotion as Inspector (Examiner) and this Court granted interim order of status-quo which continued

to be in force.

We heard the submissions made on either side and also perused the materials available on record.

The learned Counsel for the contesting respondents in the writ petitions brought to our notice that the aforesaid writ petition in W.P. No.

28333 of 2003 was dismissed by this Court on 14.10.2008 and one of us was a party to the said order. The contesting respondents thus

submitted that since the common order in O.A. Nos. 995 of 2002 and 495 of 2003 attained finality, these writ petitions deserve to be dismissed as

the order in O.A. No. 409 of 2003 is based on the order in O.A. No. 995 of 2002.

However, the writ petitioners strenuously argued that they were promoted in the prerestructured cadre based on the then Recruitment Rules

1979 for the post of Preventive Officer as the vacancies in Preventive Officer arose prior to the coming into existence of the new Recruitment

Rules 2002 for the post of Inspector (Preventive Officer). The learned Counsel for the petitioners cited the following decision in support of the

proposition that was canvassed:

1) Y.V. Rangaiah and Others Vs. J. Sreenivasa Rao and Others,

2) Dr. Umakant Saran Vs. State of Bihar and Others,

3) State Bank of India Vs. Yogendera Kumar Srivastava and Others,

4) P. Mahendran and others Vs. State of Karnataka and others,

5) B.L. Gupta and Another Vs. M.C.D.,

6) Vimal Kumari Vs. The State of Haryana and Others,

Abraham Jacob and Others Vs. Union of India,

The learned Counsel for the contesting respondents repelled the said contentions and argued that there is no quarrel over the proposition of

law laid down in the decisions cited by the writ petitioners that the vacancy prior to the new Rules would be governed by old Rules and not by the

new Rules. The learned Counsel argued that the Government took conscious decision not to fill the vacancy under old Rules and that such a

decision was validly taken keeping in view the massive restructuring of the Department. He had cited the decisions of the Apex Court reported in

State of Punjab and Others Vs. Arun Kumar Aggarwal and Others, and Dr. Ramulu and another, etc. Vs. Dr. S. Suryaprakash Rao and others, ,

wherein some of the decisions relied on by the writ petitioners were referred to and it was categorically held that when in the facts of the case, a

conscious decision was taken by the Department not to fill up the vacancies for well founded reasons, the old Rules cannot be relied on in those

circumstances and the old Rules is of no use. Further, the learned Counsel argued that factually the vacancy was not with reference to

prerestructured cadre of Preventive Officer and it was only the Inspector (Preventive Officer) which is the restructured cadre and the cadre

strength of Preventive Officer in the prerestructured cadre was 223, while the cadre strength fixed for Inspector (Preventive Officer) as per the

notification referred to in the letter dated 05.06.2002 of the Government of India was 220 and the 95 appointments including the 30 covering the

writ petitioners were against the 220 and not against the 223. In this connection, he brought to our notice the letter dated 05.06.2002 and

28.10.2002 of the Government of India referred to above. The contesting respondents argued that the Data Entry Operators in Grade ""C"" and

Grade ""B"" are treated as seniors by the 2003 Rules of Senior Tax Assistants and therefore, the Seniors could not be ignored altogether for

consideration.

We are in entire agreement with the submissions made by the learned Counsel for the contesting respondents and the Tribunal is perfectly

correct in quashing the promotion given to the 30 persons including the writ petitioners when the earlier order in O.A. No. 995 of 2002 of the

Tribunal attained finality.

Hence, we are not inclined to interfere with the order passed in O.A. No. 409 of 2003 which is impugned in the present writ petitions and the

writ petitions are accordingly dismissed. No costs. Consequently, connected miscellaneous petitions are dismissed.