Central Administrative Tribunal - Madras
S Sreekumar vs M/O Finance on 9 December, 2024
1 OA 723/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/00723/2017
Dated the 9th day of December, Two Thousand Twenty-Four
CORAM:
HON'BLE SHRI. M. SWAMINATHAN, Member (J)
&
HON'BLE SHRI. SANGAM NARAIN SRIVASTAVA, Member(A)
1.S. SREEKUMAR
2.S.SELVARAJU
3.SMISHA RAJAN
4.MERLIN METILDA MARTHI
5.S.MANIKANDAN
6.S.CHITRA
7.R. BALAMURALI
8.HEMA PARAMESHWARAN
9.K.KARUPPIAH
10.R.K.MURALI
11.RAMAA SHIVKUMAR
12.S.CHITHRA
13.S.MURUGESAN
14.T.HARI KRISHNAN
15.TARA K.JYOTHIS
16.VIDYA RENGARAJAN
17.MOHAMMED IBRAHIM ... Applicants
By Advocate M/s.V.Vijay Shankar
-Vs-
1. Union of India represented by
The Secretary to the Government,
Department of Revenue, Ministry of Finance,
Central Board of Excise and Customs,
New Delhi.
2. The Principal Chief Commissioner of Central Excise,
Chennai Zone, 121,
Mahatma Gandhi Road, Madras-34.
3. The Deputy Commissioner (CCA),
O/o. the Chief Commissioner of Central Excise,
121, Mahatma Gandhi Road, Chennai-34.
2 OA 723/2017
4. B.Madhavan Inspector of Central Excise,
(Presently Superintendent of Central Excise)
Service Tax-1 Commissionerate,
Newry Towers, 4th floor, 12th Main Road,
Anna Nagar, Chennai-40.
5. D.I.Prasad,
Inspector of Central Excise,
(Presently Superintendent of Central Excise)
O/o the Director General of Systems
No.121, Mahathma Gandhi Road,
Chennai-34.
6. K.S.Venkataraman Inspector of Central Excise,
(Presently Superintendent of Central Excise)
Central Excise Chennai 1V Commissionerate,
MHU Complex 692, Anna Salai,
Nandanam, Chennai-35. ......Respondents.
By Advocate Mr.J.Vasu
3 OA 723/2017
ORDER
(Pronounced by Hon'ble Mr. Sangam Narain Srivastava, Member(A)) The applicants have filed this OA under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief:
"To call for the proceedings of the 2nd respondent in C.No.II/34/14/2015-Estt. (CCA), dated 28.4.2015 revising the Final Seniority List dated 25.9.2014 in C.No.lI/34/04/2013-Estt. (CCA) notifying the seniority list of candidates in the cadre of Inspector of Central Excise and the consequential order of the 2 respondent contained in proceedings in C.No.Il/39/280/2015 CF- CCA Pt.1, dated 13.10.2016 and quash the same and consequently direct the respondents to confirm the seniority of the applicants as contained in proceedings dated 25.9.2014 and give further promotion to them on that basis and without in any manner refixing the pay of the applicants to their disadvantage and pass such other order or orders as may be deemed fit and thus render justice. "
2. Brief facts of the case, as submitted by the applicants, are as follows:
2.1 Some of the applicants joined as Lower Division Clerk and later got promotion as Upper Division Clerk and some of the applicants joined directly as Upper Division Clerk and all were promoted as Inspector of Central Excise and are working as such. In the year 2002, there was a large scale re-structuring of certain categories of posts took place in the department by which the posts of 1.Tax Assistant (pre-restructured)
2.Data Entry Operator - Gr.B 3.Data Entry Operator - Gr.C 4.Special Pay UDC were redesignated as Senior Tax Assistant and 1. Upper Division Clerk 2. Data Entry Operator - Gr.A 3. Lower Division Clerk were redesignated as Tax Assistant. On 12.06.2003, the applicants got regular 4 OA 723/2017 promotion as Inspector of Central Excise against vacancy year 2002-2003 for which the relevant eligibility date 01.01.2002. The promotion of the applicants was made in accordance with Central Excise Customs (Group C) Recruitment Rules 2002 and after departmental examination, physical test and interview. The promotions were made in accordance with Clause 12(s) of the Recruitment Rules. On 01.01.2013, the Draft Seniority list was published, in which the names of the applicants was correctly reflected with reference to their date of regular promotion. On 25.09.2014, Final Seniority List of Inspectors of Central Excise, in which also, the applicants names was found in the correct place. On 28.04.2015, the department issued a revised seniority list by which, Data Entry Operators (DEOs) represented by Respondents 3 to 5 herein, placing such DEOs above the applicants. Hence the applicants and others were constrained to file OA 999 of 2015 and 1764 of 2015 before this Tribunal. On 22.07.2016, final order was passed by this Tribunal in the said OAs directing the department to reconsider the issue of revision of seniority taking note of the rule provisions and other applicable instructions/circulars. On 13.10.2016, impugned proceedings of the department reiterating their earlier seniority list dated 28.04.2015 was issued by the respondents by rejecting the detailed factual and legal submissions made by the applicants. Challenging the aforesaid proceedings dated 28.04.2015 and the consequential proceedings dated 13.10.2016, the present OA has been filed.
2.2 The applicants have challenged the impugned orders on the following grounds:
a) The applicants got promotion as Inspector of Central Excise for 5 OA 723/2017 vacancy years 2002-2003 (crucial date 01.01.2002) and against vacancies of 2003-2004 (crucial date 01.01.2003). The promotions were made in accordance with the Recruitment Rules and after written exams, physical test and interview.
b) On the other hand, the Data Entry Operators (Respondents 3 to 5) have now been placed over and above the applicants against vacancies of the year 2002-2003 and 2003-2004 when on the relevant crucial dates viz., 01.01.2002 and 01.01.2003, they had not even qualified in the written test and undergone the other requirements of physical test and interview.
c) The DEOs passed the examination only during the years and 2004. For instance, 5th respondent Mr.K.S.Venkatraman passed the examination only on 30.12.2003, the 4th respondent V.Madhavan, on 20.12.2003, none of the DEOs therefore became eligible to be considered for promotion as Inspector of Central Excise against vacancies of the year 2002-2003 and 2003, 2004, in terms of the Recruitment Rules 2002.
Consequently, their promotion and placement in the seniority list, above the applicants is illegal and improper. Being aggrieved, the applicant has filed the present OA challenging the impugned order and seeking the aforesaid relief.
3. After notice, the respondents have entered appearance through their counsel and filed their reply statement refuting all the averments made in the OA except those which are admitted on facts. 3.1 The respondents submitted that the entire situation that existed at the time of original DPC got changed totally consequent to the following developments:
6 OA 723/2017
(i) Hon'ble Mumbai High Court order dated 17.10.2003 in W.P.No.6957/2003;
(ii) The Supreme Court's dismissal of the appeal filed in the above W.P. (reference: Board's letter dated 04.10.2004)
(iii) The Board's letter F.No. C-18013/25/2004.AD.III.B dated 04.10.2004 directing the department to implement the Hon'ble Mumbai High Court order dated 17.10.2003
(iv) Review DPC(s) conducted by the department during 23, 24 & 27 th April 2015 implementing the Hon'ble Mumbai High Court order dated 17.10.2003.
3.2 The respondents submitted that the CBEC vide letter F. No A- 11019/72/99-Ad.IV dated 19th July 2001 communicated approval of cadre restructuring in the department. During the process, the post of Inspector was restructured and new Recruitment Rules for the post of Inspector were notified on 07.12.2002 vide GSR No.494. Also two new ministerial cadres were created in the cadre restructure namely Senior Tax Assistant (STA) Tax Assistant (TA). Recruitment Rules for the posts of STA and TA were notified 20.01.2003 and 05.05.2003 respectively. These posts were carved out by merging ministerial (old TA, UDC, LDC) and Data Entry Operator (DEO Gr.C/B/A) cadres. As per the initial constitution clause of the STA Recruitment Rules, 2003 notified on 20.01.2003 vide G.S.R.39(E), the services rendered by both the Ministerial and Data Entry Operators before the commencement of the STA Rules, 2003 shall be taken into account for deciding the eligibility for promotion to the next higher grade. Similar clause was provided in the TA Recruitment Rules, 2003 [notified on 05.05.2003 vide G.S.R. 381(E)] also for counting of 7 OA 723/2017 past services of ministerial (UDC) as well as DEO (DEO Gr.A) cadres. Thus, it can be seen that even though the posts of STA and TA came into existence 20.01.2003 a and 05.05.2003, the service rendered by both ministerial and DEO cadres in their respective cadres prior to restructuring are counted for further promotion only on higher grades. 3.3 The respondents further submitted that the contention of the applicants that the Clause 12(a) of the Inspector Recruitment Rules, 2002 alone is operable during the first two years of the notification of The said Recruitment Rules and Clause 12(b) And 12(c) will come into effect only after the expiry of 2 years does not hold water. It is submitted that the Recruitment Rules for the post of Inspector were notified on 07.12.2002, wherein as per Clause 12(b), STAs with 2 years of regular service are eligible for consideration to Inspector post, failing the method of Clause 12(b), Tax Assistants with 10 years regular service are eligible for consideration to Inspector post. Since the STA and TA cadres were not in existence in December 2002, the department had taken a stand at the material time that only candidates covered under Clause 12(a), who are already feeder cadres for promotion to the grade of Inspector could be considered; and accordingly considered candidates covered under Clause 12(a) alone to the grade of Inspector during the original DPC. 3.4 Against the above stand of the Department, Data Entry Operators turned STAS/TAs of Mumbai Zone approached the Hon'ble High Court, Mumbai. The Hon'ble Mumbai High Court in its order dated 17.10.2003 in W.P.No.6957/2003 held that while operation of clause 12(a) is restricted for the initial period of two years, there is nothing in Rules which indicates that Clause 12 (b) and Clause 12(c) would not be applicable during the 8 OA 723/2017 initial period of two years. A Special Leave Petition (SLP) filed by the ministerial employee(s) in the Hon'ble Supreme Court against Mumbai High court judgment dated 17.10.2003 was dismissed by the Hon'ble Supreme Court. Therefore, the CBEC vide letter F.No. C- 18013/25/2004.AD.III.B dated 04.10.2004 directed the field formations to implement the Mumbai High Court order. As such, the statement of the Applicant that Clause 12(a) alone is to be operated for the initial two years after the notification of Inspector Recruitment Rules is unfounded and misleading.
3.5 As regards the statement of the Applicant that the Hon'ble Mumbai High Court order dated 17.10.2003 is for Customs department Recruitment GS.R.495 and G.S.R. 496, attention is invited to the CB 18013/25/2004-AD.III.B dated 04.10.2004 addressed to all the Chief Commissioners of Central Excise & Customs, Vide Para 3 of the Board's letter dated 04.10.2004, it was specifically mentioned that since the judgement has all India ramification, the Board had decided that the ratio of the Mumbai High Court decision should be applied to all cases. Since the Board had taken a decision to implement the Mumbai High Court order uniformly to all cases vide letter dated 04.10.2004, which was addressed to all the Chief Commissioners of Central Excise and Customs, the ratio of the Mumbai High Court order was implemented in this zone by Reviewing the promotions in the grade of Inspector during April 2015. 3.6 With regard to the contention of the Applicant that the Mumbai High Court never stated or declared that even those not fulfilling the required qualifications of passing the departmental examination, interview, etc., could be considered under clause 12(b) and 12(c) since 9 OA 723/2017 the Inspector is a selection post, it is submitted that the Board vide letter F.No.A-32011/18/2003-Ad.III-A dated 08.10.2003 had granted one time relaxation in the Inspector Recruitment Rules, 2002 for passing departmental examination. As per the an Board's letter, the Review DPC applied the relaxation to all feeder cadres in the Inspector Recruitment Rules, 2002. Further, the review DPC took note that Board vide letter F.No.C-18013/25/2004-Ad.III.B dated 4.4.2005 which had instructed Mumbai Customs that the Cadre Controlling Authority has to decide all the procedural issues viz., preparation of consideration zone, select panel, fixation of seniority, etc. keeping in view the Government's instructions and other relevant facts. As such, with regard to qualifying in physical standards and interview, it is informed that the DEO turned STA/TAS (covered under clause 12(b) & 12(c) were not considered during the original DPCs held for the vacancy years 2002-03 and 2003-04 due to the department's earlier stand and hence they were not invited for measurement of physical standards and then for interview. They appeared for measurement of physical standards and interview on a later year when were originally called for by the department. However the Hon'ble Mumbai High Court vide order dated 17.10.2003 held that while operation of clause 12(a) is restricted for the initial period of two years, there is nothing in Rules which Indicates that Clause 12(b) and Clause 12(c) would not be applicable during the initial period of two years. As such, the eligible DEO turned STA/TAs (covered under clause 12(b) & 12(c)) were considered by the review DPC for promotion to the grade of Inspector during the years 2002-03 (in respect of vacancies from 7.12.2002 to 31.3.2003) and 2003-04 also. The results of the physical 10 OA 723/2017 standards measurement and interview they appeared originally when called for by the department were taken into by the review DPCs for empanelment of the candidates for the vacancy years 2002-03 and 2003- 04 owing to the fact that they did not get the opportunity during consideration the said years.
3.7 The respondents further submitted that during the review DPC held in April 2015, promotions were given effect to as per Inspector Recruitment Rules, 2002 read with STA/TA recruitment Rules, in order to implement the Hon'ble Mumbai High Court order and Hon'ble Andhra Pradesh High Court order dated 07.03.2005 in WP No.2378/2005 and the instructions in this regard. It is to be noted that as per the initial constitution clause of both STA and TA Recruitment Rules, the services rendered in the erstwhile Board's cadres are to be counted for the purpose of promotion to higher grade. Even though the cadres of STA and TA came into existence on 020.01.2003 and 05.05.2003 respectively, for counting the eligibility service, the services rendered by them in their erstwhile cadres has to be taken into consideration for the purpose of promotion, as per the initial constitution clause of STA and TA Recruitment Rules, 2003. Hence, the contention of the Applicants is erroneous. Also the Review DPCs held in April 2015 itself is to implement the High Court orders, the issue of show cause notice or opportunity for the Applicants to submit their explanation or objection does not arise. Hence they prayed for dismissal of the OA.
4. During the pendency of the OA, the applicants have filed MA 529/2019 praying for an order of interim injunction restraining the respondents from effecting refixation and recovery from the pay of the 11 OA 723/2017 applicants pending final disposal of the main OA and the respondents have filed their reply in the said MA and after hearing both sides, this Tribunal, vide order dated 16.09.2019, has granted a direction to the respondents to maintain status quo regarding the refixation and recovery from the pay of the applicants till the filing of reply in the MA and thereafter was extended till next date of hearing.
5. Learned counsel for the applicants in support of their contention has relied upon the decision of the Hon'ble Supreme Court judgement dated 05.02.2020 in C.A.NO.1970-1975 OF 2009 (reported in 2020 (18) SCC
1), wherein the Hon'ble Supreme Court has held as under:-
Para 43
a) The cadre of DEOs was not in existence as on 01.01.2001 (Recruitment Year 2001-2002) and 01.01.2002 (Recruitment Year 2002-2003) and were therefore, not eligible for consideration for promotion as Inspector of Central Excise.
Para 75 and Para 84
b) The cadre of senior Tax Assistant (STA) came into being only on 02.01.2003.
Para 104
c) Since STA cadre came into being only on 20.01.2003, the said cadre is not eligible for filling vacancies that arose before that date. Para 94
d) The Ministerial Cadre (clause 12 (a)) and DEO cadre (Clause 12(b) are both eligible to be considered for promotion as Inspector of Central Excise from 20.01.2003 subject to their eligibility/qualification. 12 OA 723/2017 Para 94
e) The Ministerial cadre viz., Clause 12(a) are eligible to be considered only for a period of 2 years viz., from 20.01.2003 upto 19.01.2005. Para 107
(f) For vacancies which arose after 7.12.2002, both clause (a) and clause
(b) are entitled to be considered, subject to their eligibility. Learned counsel for the applicant further contended that relaxation under 08.10.2003 circular is available only for officials in the pre-restructured cadre viz., Clause 12 (a) viz., Ministerial cadres. Hence department not justified in relaxing the qualification in respect of Clause (b) and (c) viz., DEO cadres.
6. Heard learned counsels, Mr.V.Vijay Shankar for the applicant and Mr.J.Vasu for the respondents.
7. We have gone through the facts of the case, submissions made by the learned counsels and perused the material available on record.
8. There is no dispute that the persons referred to in 12(b) and 12(c) of the RRs have also to be considered for promotion for the vacancy years 2001-02 & 2002-03 in terms of the Hon'ble Supreme Court's decision. The review DPC on 23rd, 24th and 27th April 2015 were conducted by the respondents in view of this. However, in their decision, the Hon. Apex Court has nowhere permitted that persons who do not possess the eligibility should also be considered. Eligibility for promotion,i.e., passing of the departmental examination, has to be acquired by the candidates by the Cut Off date which is 01.01.2001 and 01.01.2002 for vacancy years 2001-2002 and 2002-2003 respectively. Those who acquired eligibility by 13 OA 723/2017 these dates would alone be eligible for consideration for promotion for the respective vacancy years. The applicants acquired this eligibility by virtue of passing departmental examination within the one time relaxation allowed by the respondents, vide Board letter F.No.A-32011/18/003-AD IIIA dated 08.10.2003. In the review DPC conducted by the respondents, the same benefit was allowed to the restructured cadres by the respondents and promotion granted to the DEOs who had passed the exam within the extended period of one time relaxation. Such a relaxation to the DEOs in our considered view was not permitted. The relevant portion of the Board letter dated 08.10.2003 allowing relaxation reads as under:-
(i)Relaxation in Recruitment Rules for promotion to the grade of Inspector:
(i) The Central Government has decided to provide for one time relaxation of 2 years in qualifying service to all officials in the pre-
restructured cadre, eligible for promotion to the post of Inspector (Central Excise), Inspector (Preventive Officers) and Inspector (Examiner). However, this relaxation is not applicable to the officials claiming eligibility against entry "Stenographer grade-II with 2 years regular service" and "Tax Assistants with 2 years regular service as Tax Assistants" in the pre-restructured cadre. Further wherever the otherwise eligible candidates (including those who have become eligible after the relaxation in qualifying service now granted) have not passed the departmental examination required for such promotion, such officials may be promoted on a purely ad-hoc basis subject to their passing such examination by 31 December, 2003. In case they do not pass the departmental examination by the aforesaid date, they will stand reverted.
(iii) Promotion to the cadre of Senior Tax Assistant The Recruitment Rules for the post of Senior Tax Assistant provide for a minimum qualifying service of 3 years as Tax Assistant for promotion to the higher post of Senior Tax Assistant. Further, in terms of Rule 4 of the Recruitment Rules for the post of Tax Assistant, services rendered before commencement of these Recruitment Rules by the persons appointed on regular basis and holding the post of Upper Division Clerk and Data Entry Operator Grade 'A' before these rules came into force shall be taken into account as regular service on the post of Tax Assistant for the purpose of promotions etc. Hence there is no need to relax the minimum qualifying service of 3 years for promotion, since service in the pre-restructured posts shall be counted. However, passing 14 OA 723/2017 in the examination of Computer Application and relevant procedures is a pre requisite for promotion as Senior Tax Assistant under the Recruitment Rules for the grade of Senior Tax Assistants. The Central Government has decided to relax the requirement for passing the departmental examination for promotion of Tax Assistants to the grade of Senior Tax Assistants. Such promotions will made on a purely ad-hoc basis subject to the condition that the officers pass such examination by 31st December, 2003. In case they do not pass the departmental examination by the aforesaid date, they will stand reverted."
9. From the above it is clear that the one time relaxation was allowed only to the pre-restructured cadres. It is not allowed to the post- restructured cadres. This could have been because the post-restructured cadres would not have been in existence on the crucial dates. Be that as it may, the respondents have not been able to show that the same relaxation was extended to the post-restructured cadres as well, either by modification of the Board letter or by issue of a fresh OM granting such relaxation to the post-restructured cadres as well. Since the relaxation was not available to the restructured cadres they needed to have acquired the eligibility by the Cut Off dates. It is a matter of record that the DEOs have acquired eligibility only after the Cut Off period. Thought this is within the relaxation period but that does not help their case. The DPC is not the authority competent to relax the norms. Promotions have to be governed by the RRs subject to relaxation granted by the competent authority, if any. Therefore, any alterations to the seniority list based on the erroneous selection/promotion on account of allowing relaxation to the restructured cadres by the review DPC, in our considered view, is required to be struck down to the extent of promotions granted to ineligible candidates in the review DPC conducted in April 2015. The respondents are, therefore, directed to restore the final seniority list dated 25.09.2014 in C.No.II/34/04/2013-Estt. (CCA) and grant them consequential benefits based on the restored seniority 15 OA 723/2017 list. The said exercise shall be completed within a period of three months from the date of receipt of a copy of this order.
10. OA is allowed. No order as to costs.
(Sangam Narain Srivastava) (M.Swaminathan)
Member(A) Member(J)
MT 09.12.2024