Central Administrative Tribunal - Hyderabad
Puvula Karunasri vs Central Board Of Indirect Taxes A& ... on 26 July, 2023
OA.No.020/57/2023 & batch
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH, HYDERABAD
O.A No.020/57,58, 59,60, 61, 62 and 63/2023
ORDER RESERVED ON 28.03.2023
ORDER PRONOUNCED ON : 26.07.2023
CORAM:
HON'BLE MR. SUDHI RANJAN MISHRA, JUDICIAL MEMBER
HON'BLE MR. B.ANAND, ADMINISTRATIVE MEMBER
OA.No.020/57/2023:
Kakinada Durga Prasad, s/o Late Shri Kakinada Madhu,
Aged about 35 yrs, occ: Inspector of Central Tax/Preventive Officer
Group-C, O/o the Principal Commissioner of Central Tax,
Visakhapatnam CGST Commissionerate, Port Area,
Visakhapatnam-530 035, (presently working on deputation in
The O/o the Development Commissioner, Visakhapatnam
Special Economic Zone, Administrative Building, Duvvada,
Visakhapatnam-530 049, Andhra Pradesh, r/o Visakhapatnam.
...Applicant
(By Mr.G.Mallikarjun, Advocate represented by Senior Advocate Mr.Siva)
Vs.
1. Union of India, rep., by the Secretary,
Ministry of Finance, Department of Revenue,
North Block, New Delhi.
2. The Central Board of Indirect Taxes and Customs,
Rep., by the Secretary, M/o Finance, Dept. of
Revenue, North Block, New Delhi.
3. Principal Commissioner of Customs and Central
Excise (Cadre Controlling Authority), Hyderabad
GST Commissionerate, GST Bhavan, LB Stadium
Road, Basheerbagh, Hyderabad-500 004.
4. Additional Commissioner of Customs and Central
Excise (Cadre Controlling Authority, Hyderabad
GST Commissionerate, GST Bhavan, LB Stadium
Road, Basheerbagh, Hyderabad-500 004.
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OA.No.020/57/2023 & batch
5. The Principal Commissioner of Central Tax,
Visakhapatnam CGST Commissionerate, Port Area,
Visakhapatnam-530 035, Andhra Pradesh. ....Respondents
(By Advocate Mrs.K.Rajitha, Sr. PC for CG )
OA.No.020/58/2023:
Puvula Karunasri, w/o Puvula Naga Hari Prasad,
Aged about 55 yrs, occ: Inspector (Customs Officer),
(Rajiv Gandhi International Airport), Group-C,
O/o the Principal Commissioner of Customs
Commissionerate, Kendriya Shulk Bhavan,
Basheerbagh, Hyderabad-500 004, Telangana,
R/o Hyderabad. ...Applicant
(By Mr.G.Mallikarjun, Advocate represented by Senior Advocate Mr.Siva)
Vs.
1. Union of India, rep., by the Secretary,
Ministry of Finance, Department of Revenue,
North Block, New Delhi.
2. The Central Board of Indirect Taxes and Customs,
Rep., by the Secretary, M/o Finance, Dept. of
Revenue, North Block, New Delhi.
3. Principal Commissioner of Customs and Central
Excise (Cadre Controlling Authority), Hyderabad
GST Commissionerate, GST Bhavan, LB Stadium
Road, Basheerbagh, Hyderabad-500 004.
4. Additional Commissioner of Customs and Central
Excise (Cadre Controlling Authority), Hyderabad
GST Commissionerate, GST Bhavan, LB Stadium
Road, Basheerbagh, Hyderabad-500 004.
5. The Principal Commissioner of Customs
Commissionerate, Kendriya Shulk Bhavan,
Basheerbagh, Hyderabad-500 004, Telangana,
R/o Hyderabad. ....Respondents
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OA.No.020/57/2023 & batch
(By Advocate Mr.T.Hanumantha Reddy, Sr.PC for CG )
OA.No.020/59/2023:
Ravuru Rama Krishna, s/o late Shri Ravuru Balasundaram,
Aged 48 yrs, occ: Inspector of Central Tax, Group-C,
O/o the Commissioner of Central Tax & Customs (Appeals),
D.No.3-30-15, Ring Road, Guntur-522 006,
R/o Vijayawada. ...Applicant
(By Mr.G.Mallikarjun, Advocate represented by Senior Advocate Mr.Siva)
Vs.
1. Union of India, rep., by the Secretary,
Ministry of Finance, Department of Revenue,
North Block, New Delhi.
2. The Central Board of Indirect Taxes and Customs,
Rep., by the Secretary, M/o Finance, Dept. of
Revenue, North Block, New Delhi.
3. Principal Commissioner of Customs and Central
Excise (Cadre Controlling Authority), Hyderabad
GST Commissionerate, GST Bhavan, LB Stadium
Road, Basheerbagh, Hyderabad-500 004.
4. Additional Commissioner of Customs and Central
Excise (Cadre Controlling Authority, Hyderabad
GST Commissionerate, GST Bhavan, LB Stadium
Road, Basheerbagh, Hyderabad-500 004.
5. The Commissioner of Customs and Central Excise (Appeals),
D.No.3-30-15, Ring Road, Guntur-522 006.
....Respondents
(By Advocate Mr.M.Brahma Reddy, Sr.PC for CG )
OA.No.020/60/2023:
Kolipaka Srinivasa Rao, s/o Kolipaka Seethayya,
Aged about 37 yrs, occ: Inspector of Central Tax, Group-C,
O/o the Commissioner of Central Tax, CGST Guntur
Commissionerate, C.R.Building Kannavarithota,
Guntur-522 004, presently working in O/o the
Deputy Assistant Commissioner of Central Tax,
D.No.55-17-3, C-14 & PC-1, 3rd Floor,
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OA.No.020/57/2023 & batch
Near NGO Complex, Road No.2,
Industrial Estate, Auto Nagar, Vijayawada-
520 007, r/o Vijayawada. ...Applicant
(By Mr.G.Mallikarjun, Advocate represented by Senior Advocate Mr.Siva)
Vs.
1. Union of India, rep., by the Secretary,
Ministry of Finance, Department of Revenue,
North Block, New Delhi.
2. The Central Board of Indirect Taxes and Customs,
Rep., by the Secretary, M/o Finance, Dept. of
Revenue, North Block, New Delhi.
3. Principal Commissioner of Customs and Central
Excise (Cadre Controlling Authority), Hyderabad
GST Commissionerate, GST Bhavan, LB Stadium
Road, Basheerbagh, Hyderabad-500 004.
4. Additional Commissioner of Customs and Central
Excise (Cadre Controlling Authority, Hyderabad
GST Commissionerate, GST Bhavan, LB Stadium
Road, Basheerbagh, Hyderabad-500 004.
5. The Commissioner of Central Tax,
CGST Guntur Commissionerate,
C.R.Buildings, Kannavari Thota,
Guntur-522 004. ....Respondents
(By Advocate Mr.D.Satyaveer, Sr.PC for CG )
OA.No.020/61/2023:
Vemulamada Ravi Sankar, s/o late Shri V.Rama Sheshagiri Rao,
Aged about 50 yrs, occ: Inspector of Central Tax, Group-C,
O/o the Deputy Commissioner (Audit) Central Tax,
Guntur Circle, 3rd Floor, Annapurna Complex,
Opp:Padmaja Petrol Bunk, Near APSRTC Bus Stand,
Mangalagiri Road, Guntur-522 001, Andhra Pradesh,
R/o Guntur. ...Applicant
(By Mr.G.Mallikarjun, Advocate represented by Senior Advocate Mr.Siva)
Vs.
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OA.No.020/57/2023 & batch
1. Union of India, rep., by the Secretary,
Ministry of Finance, Department of Revenue,
North Block, New Delhi.
2. The Central Board of Indirect Taxes and Customs,
Rep., by the Secretary, M/o Finance, Dept. of
Revenue, North Block, New Delhi.
3. Principal Commissioner of Customs and Central
Excise (Cadre Controlling Authority), Hyderabad
GST Commissionerate, GST Bhavan, LB Stadium
Road, Basheerbagh, Hyderabad-500 004.
4. Additional Commissioner of Customs and Central
Excise (Cadre Controlling Authority, Hyderabad
GST Commissionerate, GST Bhavan, LB Stadium
Road, Basheerbagh, Hyderabad-500 004.
5. Deputy Commissioner (Audit) Central Tax,
Guntur Circle, 3rd Floor, Annapurna Complex,
Opp:Padmaja Petrol Bunk, Near APSRTC Bus Stand,
Mangalagiri Road, Guntur-522 001, Andhra Pradesh,
....Respondents
(By Advocate Mrs.Megharani Agarwal, Sr.PC for CG )
OA.No.020/62/2023:
Jinka Gopi Narasimha Prasad, s/o Jnika Obul Narasaiah,
Aged about 40 yrs, occ: Inspector of Central Tax/
Intelligence Officer, Directorate General of GST
Intelligence, Vijayawada Regional Unit,
Door No.54-1-72A, Samvardhini, Beside Westin
School of Business, Vijayalakshmi Colony, 100 Feet
Road, Vijayawada-520 008, Andhra Pradesh,
R/o Vijayawada. ...Applicant
(By Mr.G.Mallikarjun, Advocate represented by Senior Advocate Mr.Siva)
Vs.
1. Union of India, rep., by the Secretary,
Ministry of Finance, Department of Revenue,
North Block, New Delhi.
2. The Central Board of Indirect Taxes and Customs,
Rep., by the Secretary, M/o Finance, Dept. of
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OA.No.020/57/2023 & batch
Revenue, North Block, New Delhi.
3. Principal Commissioner of Customs and Central
Excise (Cadre Controlling Authority), Hyderabad
GST Commissionerate, GST Bhavan, LB Stadium
Road, Basheerbagh, Hyderabad-500 004.
4. Additional Commissioner of Customs and Central
Excise (Cadre Controlling Authority, Hyderabad
GST Commissionerate, GST Bhavan, LB Stadium
Road, Basheerbagh, Hyderabad-500 004.
5. Deputy Director, Directorate General of GST
Intelligence, Vijayawada Regional Unit,
Door No.54-1-72A, Samvardhini, Beside Westin
School of Business, Vijayalakshmi Colony, 100 Feet
Road, Vijayawada-520 008, Andhra Pradesh. ....Respondents
(By Advocate Mr.KB.Siva Sankar, Sr.PC for CG )
OA.No.020/63/2023:
Yerramsetti Venkata Vijaya Nirmala Suseela Rani,
D/o late Shri Pasupuleti Arjuna Rao, aged about 48 yrs,
occ: Inspector of Central Tax, O/o the Commissioner of
Central Tax, Hyderabad-II Audit Commissionerate,
1-98/B/20, 21, Sanvi Yamuna Pride,
Krithika Layout, Madhapur, Hyderabad-500 081,
R/o Hyderabad. ...Applicant
(By Mr.G.Mallikarjun, Advocate represented by Senior Advocate Mr.Siva)
Vs.
1. Union of India, rep., by the Secretary,
Ministry of Finance, Department of Revenue,
North Block, New Delhi.
2. The Central Board of Indirect Taxes and Customs,
Rep., by the Secretary, M/o Finance, Dept. of
Revenue, North Block, New Delhi.
3. Principal Commissioner of Customs and Central
Excise (Cadre Controlling Authority), Hyderabad
GST Commissionerate, GST Bhavan, LB Stadium
Road, Basheerbagh, Hyderabad-500 004.
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OA.No.020/57/2023 & batch
4. Additional Commissioner of Customs and Central
Excise (Cadre Controlling Authority, Hyderabad
GST Commissionerate, GST Bhavan, LB Stadium
Road, Basheerbagh, Hyderabad-500 004.
5. Commissioner of Central Tax,
Hyderabad-II Audit Commissionerate,
1-98/B/20, 21, Sanvi Yamuna Pride,
Krithika Layout, Madhapur, Hyderabad-500 081. ....Respondents
(By Advocate Mrs.B.Gayatri Varma, Sr. CGSC )
ORDER
PER HON'BLE MR. B.ANAND, ADMINISTRATIVE MEMBER Since common question of law and facts are involved in all these OAs, and the relief sought for is one and the same, all these OAs are being disposed of by this Common Order.
2. The OA.Nos.57, 58, 59, 60, 61, 62 and 63/2023 have been filed under Section 19 of the Administrative Tribunals Act 1985, seeking the following main reliefs:
"(a) To call for the records relating to and connected with Establishment Order (N.G.O.) 9 of 2023 and also Establishment Order (N.G.O.) 11 of 2023 and 20.01.2023 of the 4th respondent and quash or set aside the same holding it as arbitrary, illegal, unjust, violative of principles of natural justice, and also violative of Articles 14, 16 and 21 of the Constitution of India; and
(b) consequently, declare that the applicants are entitled to continue as an Inspector of Central Tax together with all the benefits i.e., monetary as well as seniority and release all the benefits that would flow from out of setting aside the impugned orders as well as direct that the applicants are entitled for costs for having thrust this unwarranted litigation P a g e | 7 of 24 OA.No.020/57/2023 & batch and pass such other order or orders as this Tribunal may deem fit and proper in the circumstances of the case."
3. The brief facts of the case are that the applicants in all these OAs have been recruited as Stenographers by the Staff Selection Commission (SSC) and joined Government service in different departments on different dates, and finally, they left their parent departments and joined the Central Excise and Customs Department, as shown in the following Table:
SL. Name of the Applicant Date of first Date of entry Date on No. Entry into Into Central which Govt. Service Excise they were re-
Department as designated as
Stenographer Stenographer
Grade-III Grade-II
01 Kakinada Durga 04.04.2012 04.04.2012 04.04.2014
Prasad
02 Puvula Karunasri 12.10.1989 14.10.2010 14.10.2010
03 Ravuru Rama Krishna 01.04.1997 29.06.2010 29.06.2010
04 Kolipaka Srinivasa 21.05.2012 21.05.2012 21.05.2014
Rao
05 Vemulamada Ravi 27.05.1999 12.10.2011 12.10.2011
Sankar
06 Jinka Gopi Narasimha 17.12.2012 17.12.2012 17.12.2014
Prasad
07 Yerramsetti Venkata 20.12.1999 06.06.2012 06.06.2012
Vijaya Nirmala
Suseela Rani
4. When the above seven (07) applicants joined the Central Excise Department as Stenographer Grade-III, the career path that was normally available to them was Stenographer Grade-III (Grade Pay Rs.2400/- ), Stenographer Grade-II (Grade Pay Rs.2400/-) and Stenographer Grade-I (Grade Pay Rs.4200/-). Based on the recommendations of the VI Pay P a g e | 8 of 24 OA.No.020/57/2023 & batch Commission, the department had decided to restructure the Stenographers cadre and accordingly merged Stenographer Grade I and II as Stenographer Grade-I only and consequently Stenographer Grade-III was redesignated as Stenographer Grade-II on 22.12.2010. Thus, instead of the earlier three grades (due to restructuring), there would now be only two grades of Stenographer-I and Stenographer-II. The applicants, who had joined as Stenographer Grade-III, on the dates mentioned in the Table, were now redesignated as Stenographer Grade-II without change in their pay scale or without any change in their Grade Pay w.e.f. the date of their joining in Central Excise Department.
5. In the case of the applicant in OA.No.57/2023 Sri Kakinada Durga Prasad, he had joined the department as direct recruit Stenographer Grade-III on
04.04.2012, through Staff Selection Commission, and thereafter on completion of two years' probation period, he was confirmed as Stenographer Grade-III with effect from 04.04.2014 in terms of Board's letter F.No.A.11013/20/2010- Ad.IV, dated 22.12.2010 and thereafter the then existing post of Stenographer Grade-III in Central Board of Excise & Customs (CBEC) was re-designated as Stenographer Grade-II in PB 2 with Grade Pay Rs.2400/- with effect from 04.04.2014, vide Establishment Order (N.G.O.) No.83/2015, dated 04.06.2015.
6. In the case of the applicant in OA.No.58/2023 Smt.Puvula Karunasri, she had joined the department as direct recruit Stenographer on 12.10.1989 through Staff Selection Commission, and thereafter joined the Central Excise Department on 14.10.2010 as Stenographer Grade-III. Subsequently, she was confirmed as Stenographer Grade-II with effect from 06.06.2014 in terms of P a g e | 9 of 24 OA.No.020/57/2023 & batch Board's letter F.No.A.11013/20/2010-Ad.IV, dated 22.12.2010 and thereafter the then existing post of Stenographer Grade-III in CBEC was re-designated as Stenographer Grade-II in PB 2 with Grade Pay Rs.2400/-.
7. In the case of the applicant in OA.No.59/2023, Sri Ravuru Rama Krishna, he had joined the department as direct recruit Stenographer on 01.04.1997 through Staff Selection Commission, and thereafter joined the Central Excise Department on 29.06.2010 as Stenographer Grade-III. Subsequently, he was confirmed as Stenographer Grade-II with effect from 06.06.2014 in terms of Board's letter F.No.A.11013/20/2010-Ad.IV, dated 22.12.2010 and thereafter the then existing post of Stenographer Grade-III in CBEC was re-designated as Stenographer Grade-II in PB 2 with Grade Pay Rs.2400/-.
8. In the case of the applicant in OA.No.60/2023 Sri Kolipaka Srinivasa Rao, he had joined the department as direct recruit Stenographer Grade-III on 21.05.2012, through Staff Selection Commission, and thereafter on completion of two years' probation period, he was redesignated as Stenographer Grade-II on 04.06.2015. Subsequently, he was confirmed as Stenographer Grade-II with effect from 06.06.2014 in terms of Board's letter F.No.A.11013/20/2010- Ad.IV, dated 22.12.2010 and thereafter the then existing post of Stenographer Grade-III in CBEC was re-designated as Stenographer Grade-II in PB 2 with Grade Pay Rs.2400/-.
9. In the case of the applicant in OA.No.61/2023 Sri Vemulamada Ravi Sankar, he had joined the department as direct recruit Stenographer on P a g e | 10 of 24 OA.No.020/57/2023 & batch 27.05.1999 through Staff Selection Commission, and thereafter joined the Central Excise Department on 12.10.2011 as Stenographer Grade-III. Subsequently, he was confirmed as Stenographer Grade-II with effect from 06.06.2014 in terms of Board's letter F.No.A.11013/20/2010-Ad.IV, dated 22.12.2010 and thereafter the then existing post of Stenographer Grade-III in CBEC was re-designated as Stenographer Grade-II in PB 2 with Grade Pay Rs.2400/-.
10. In the case of the applicant in OA.No.62/2023 Sri Jinka Gopi Narasimha Prasad, he had joined the department as direct recruit Stenographer Grade-III on 17.12.2012 through Staff Selection Commission, Subsequently, he was confirmed as Stenographer Grade-II with effect from 06.06.2014 in terms of Board's letter F.No.A.11013/20/2010-Ad.IV, dated 22.12.2010 and thereafter the then existing post of Stenographer Grade-III in CBEC was re-designated as Stenographer Grade-II in PB 2 with Grade Pay Rs.2400/- on 04.06.2015.
11. In the case of the applicant in OA.No.63/2023 Ms.Yerramsetti Venkata Vijaya Nirmala Suseela Rani, she had joined the department as direct recruit Stenographer Grade-D on 20.12.1999 through Staff Selection Commission. Subsequently, she had applied for Stenographers Grade-C and D Examination 2011 and on being recommended for appointment as Stenographer Grade-III, she joined duty on 06.06.2012. She was confirmed as Stenographer Grade-II with effect from 06.06.2014 in terms of Board's letter F.No.A.11013/20/2010- Ad.IV, dated 22.12.2010 and thereafter the then existing post of Stenographer P a g e | 11 of 24 OA.No.020/57/2023 & batch Grade-III in CBEC is re-designated as Stenographer Grade-II in PB 2 with Grade Pay Rs.2400/-.
12. All these seven (07) applicants were promoted as Inspector of Central Excise, purely on adhoc basis, for a period of six months by Establishment Order (N.G.O) No.46/2015, dated 17.04.2015. It is the case of the applicants that although the wording used in their appointment orders dated 17.04.2015, is "purely on adhoc basis for six months", they have been continuing to occupy those posts since 2015 for nearly 8 years without any extension of the adhoc nature of service, and therefore, it should be presumed that they were regularly occupying the post of Inspector Central Excise, from 17.04.2015.
13. While all these seven (07) applicants were working as Inspector, Central Excise since 17.04.2015, suddenly they were all given a notice dated 18.07.2022 by the 4th respondent (Cadre Controlling Authority) stating that all these applicants are reverted as Stenographer Grade-II and were promoted to the post of Stenographer Grade-I based on the Minutes of the Departmental Promotion Committee (DPC) held on 17.04.2015, 03.06.2015 and 29.06.2016, which have not gone into the below mentioned OMs.
In terms of Para 4.3.1 of DOPT OM No.20011/1/2008-Estt.(D) dated 11.11.2010
(i) The surplus employees are not entitled for benefit of the past service rendered in the previous organization for the purpose of their seniority in the new organization. Such employees are to be treated as fresh entrants in the matter of their seniority and promotions etc. In terms of Para 9 of DOPT OM No.28034/25/1987-Estt.(A) dated 11.02.1988 P a g e | 12 of 24 OA.No.020/57/2023 & batch
(i) The benefits of past service in the previous post may, if otherwise admissible under rules be given for purpose of fixation of pay in the new post treating the resignation as a 'technical formality'. In other words the service rendered in the previous department can only be counted for the purpose of fixation of pay only.
The applicants have contended that the issue, which has been settled for all these 8 years, cannot be disturbed by any new order issued by the respondents. It should be remembered that the Grade of Stenographer Grade-III alluded to in this Recruitment Rules was in existence from the year 2002. When such a Recruitment Rule was envisaged in 2002, there were three grades of Stenographer Grade-I, II and III, and it was only from 01.01.2006 that these three grades got reduced to two grades. So, all the instructions and guidelines contained in the Recruitment Rules for the post of Inspector, dated to the year 2002. But, however, when all the applicants got promotion to the post of Inspector of Central Excise in the year 2015, the respondents should have woken up to the fact that 2002 Recruitment Rules for the Inspector envisaged three grades to Stenographer, whereas in 2015 when these promotions are effected, there were two grades of Stenographer in the feeder cadre. Thus, the respondents have failed to appreciate and allowed the applicants to count their past service for getting promotion to the post of Inspector of Central Excise as two years in the grade of Stenographer Grade-II, which was the erstwhile Stenographer Grade-II between 2002 to 01.01.2006. Thus, the applicants were able to obtain a short cut promotion to the post of Inspector, Central Excise, for which post they have to put in 10 years of qualifying service as per RR-2002, whereas many of them have put in only two to three years in the Central Excise Department, for instance the applicant in OA.No.57/2023 Shri Kakinada Durga P a g e | 13 of 24 OA.No.020/57/2023 & batch Prasad joined the Customs and Central Excise Department on 04.04.2012 in the Grade Pay of Rs.2400/- and got promoted as Inspector of Central Excise in the Grade ay of Rs.4600/- on 17.04.2015 i.e., in three years' time he got a jump to the post carrying Grade Pay of Rs.4600/-. So, having woken up to this mistake, the respondents have come out with an Establishment Order (N.G.O.) No.09/2023, dated 20.01.2023, reverting all these applicants back to their post of Stenographer Grade-II, and subsequently by another order (N.G.O.) No.11/2023, dated 20.01.2023, they have all been promoted as Stenographer Grade-I, which is a normal channel of promotion available to them in the Stenographers Grade.
14. The applicants, in all the above OAs, are all aggrieved by these two impugned orders No.9 and 11 dated 20.01.2023 and have approached this Tribunal to quash these two orders on the following grounds:
(i) The matter which has been settled for the last 8 years cannot be reopened and ended in an adverse result for the applicants;
(ii) The DPC, which was initially convened and passed orders enabling their promotion as Inspector, Central Excise, cannot on its own suo moto review these orders. Such a review will have to be undertaken by the authority superior to the DPC;
(iii) That well-reasoned and speaking order has not been issued by the respondents taking into consideration the objections/representations of the applicant. They have passed only a perfunctory order in N.G.O.Nos.9 and 11 dated 20.01.2023.
P a g e | 14 of 24 OA.No.020/57/2023 & batch All these aspects have been brought to the notice by the applicants in their representation dated 08.08.2022, but the respondent-authorities have not shown any evidence of being considered these objections and passed a well-reasoned speaking order.
15. The respondents have contested the OAs by filing separate reply statements. They state that the required qualifying service for promotion to the cadre of Inspector in terms of Inspector Recruitment Rules 2002, is 10 years of regular service in the grade of Steno Grade-III (re-designated as Steno Grade-II w.e.f. 01.01.2006). As the applicants have joined in the Central Excise Department on 04.04.2012, 14.10.2010, 17.05.2010, 12.10.2011, 21.05.2012, 17.12.2012, and 06.06.2012 respectively, and none of the applicants have completed 10 years of service as on 01.01.2015 in the department. Hence, they are not eligible for consideration for promotion to the cadre of Inspector in terms of Inspector Recruitment Rules 2002.
16. The respondents have further stated that the applicants, Stenographer Grade-III (redesignated as Steno Grade-II w.e.f. 01.01.2006), in all these OAs, were promoted to the cadre of Inspector on adhoc basis vide EO (NGO) orders dated 04.06.2015, 17.04.2015, 17.04.2015, 17.04.2015, 04.06.2015, 04.06.2015, and 17.04.2015 respectively, by applying Note-5 of the Rules ibid i.e., junior senior clause. In the said orders, it was mentioned that their promotion to the cadre of Inspector is purely on adhoc basis for a period of six months from the date of joining in the cadre and the same do not confer on them any right to claim for regular promotion or any other service benefits. Their promotion was P a g e | 15 of 24 OA.No.020/57/2023 & batch also subject to the relevant conditions prescribed for adhoc appointment as stated in DOPT OM No.28036/8/87-Estt (D), dated 30.03.1988 and the Government of India DOPT A.R.O.M.No.36011 /14/83-Estt (SCT) dated 30.04.1983.
17. The respondents have further stated that the applicants have submitted representations, wherein they have submitted that they were given adhoc promotion for a period of six months and were continued on adhoc basis without any break and they were deemed to have been regularized from their adhoc promotion date. The respondents have further stated that the applicants have been redesignated as Stenographer Grade-II from their joining in terms of letter F.No.A11013/20/2010-d.IV, dated 22.12.2010, which is the feeder cadre in terms of Recruitment Rules for the post of Inspector, 2002, and hence eligible for promotion to the post of Inspector as they have completed more than two years of service as Stenographer Grade-II. Further, in terms of letter dated 22.12.2010, the Stenographer Grade-II mentioned in the Recruitment Rules for the post of Inspector 2002, stand re-designated and merged as Stenographer Grade-I in PB-2 with Grade Pay Rs.4200/-. The post, which the applicants were holding, was the same post i.e., Stenographer Grade-III (which was re-designated as Stenographer Grade-II) with same pay sale i.e., in PB-2 with Grade Pay Rs.2400, for which they were appointed. Hence, according to the respondents, the applicants in all the OAs were continued in the same post, which is renamed as Stenographer Grade-II.
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18. The respondents have contended that the orders were issued as per the recommendations of the duly constituted Review DPC, and fair opportunity was given to the applicants for representing their case by issuing notice dated 18.07.2022, and their case was placed before the Review DPC for its recommendations after meeting the principles of natural justice.
19. The respondents have submitted that as per Para 18.1 in Part-VI of DOPT OM No.22011/5/86-Estt.(D), dated 10.04.1989, "the proceedings of any DPC may be reviewed only if the DPC has not taken all material facts into consideration or if material facts have not been brought to the notice of the DPC or if there have been grave errors in the procedure followed by the DPC. Thus, it may be necessary to convene Review DPCs to rectify certain unintentional mistakes i.e., where ineligible persons were considered by mistake (in the current case)". In that view of the matter, the erroneous promotion granted to the applicants on adhoc basis was to be withdrawn as they are not eligible for promotion.
20. The issue of the applicants in all the above OAs was placed before the duly constituted Review DPC and as per the recommendations of the Review DPC, the applicants were reverted to the cadre of Stenographer Grade-II, vide Establishment Order (N.G.O.) No.09/2023, dated 20.01.2023, and consequent on the above reversion, the consequential benefits were extended to them and they were promoted to the cadre of Stenographer Grade-I, vide Establishment Order (N.G.O.) No.11/2023, dated 20.01.2023 on notional basis w.e.f. 01.01.2023(OA.No.57/2023), 01.01.2021 (OA.No.58/2023), 01.01.2023 P a g e | 17 of 24 OA.No.020/57/2023 & batch (OA.No.59/2023), 01.01.2022 (OA.No.60/2023), 01.01.2023 (OA.No.61/2023), 01.01.2023 (OA.No.62/2023) 01.01.2023(OA.No.63/2023).
21. The respondents have, therefore, contended that there are no merits in the submissions made by the applicants in all the above OAs and the same are liable to be rejected, and prayed this Tribunal to dismiss all the above OAs.
22. We have heard the arguments of the learned counsel in the respective OAs, and perused the records.
23. It is seen that when the applicants' initial promotion to the post of Inspector of Central Excise took place on 17.04.2015, it was purely an adhoc arrangement and the wording used in that order very clearly mentions that the posting is only for a period of six months from the date of joining as Inspector of Central Excise, and does not confer on them any right to claim regular promotion or service benefits, and the respondents have also drawn the attention of the applicants to the relevant conditions prescribed for adhoc appointment as stated in DOP&T OM No.28036/8/87-Estt (D), dated 30.03.1988, and the DOPT AROM No.36011/14/83-Estt.(SCT), dated 30.04.1983. It is also seen that the respondents have given a fair opportunity to the applicants for representing their cases by issuing a notice on 18.07.2022, and their representations were considered by the Review DPC and then only an order reverting them as Stenographer Grade-II has taken place.
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24. On the question of seniority on which the applicants contended that the respondents cannot be permitted to unsettle the seniority, there are plethora of judgments rendered by the Hon'ble Supreme Court and the High Courts where it is held that seniority once settled cannot be unsettled after a long lapse of time in the wake of principle of a chaotic situation to arrive and also under public policy, as ruled by the Apex Court in Sarat Chandra Mishra v. State of Orissa, (2006 (1) SCALE 9). In Maloom Lawrence Cecil D'Souza vs. Union of India (AIR 1975 SC 1269), the Hon'ble Apex Court held as follows:
"Although security of service cannot be used as a shield against administrative action for lapse of a public servant, by and large one of the essential requirements of contentment and efficiency in public services is a feeling of security. It is difficult no doubt to guarantee such security in all its varied aspects, it should at least be possible, to ensure that matters like one's position in the seniority list after having been settled for once should not be liable to be reopened after lapse of many years at the instance of a party who has during the intervening period chosen to keep quiet. Raking up old matters like seniority after a long time is likely to result in administrative complications and difficulties. It would, therefore, appear to be in the interest of smoothness and efficiency of service that such matters should be given a quietus after lapse of some time."
It is basically the inequity of unsettling settled seniority which makes Courts reluctant to give relief on the ground of delay. At the same time review of its earlier decision by an administrative body is not per se impermissible. It is the unfairness of disturbing settled seniority which is the reason why the Courts look upon a retrospective alteration of seniority with disfavour.
25. In BS Yadav & Others v. State of Haryana & Others (1981 AIR 561/1981 SCR (1) 1024), the Hon'ble Supreme Court has held that -
'It should also be realised that giving retrospective effect to the rules creates frustration and discontentment since the just expectations of the officers are falsified. Settled seniority is P a g e | 19 of 24 OA.No.020/57/2023 & batch thereby unsettled, giving rise to long drawn out litigation between the promotes and direct appointees.' But, it has been subsequently held that "the right to seniority can be denied or altered by the State even with retrospective effect in public interest in exercise of its rule making power under Article 309 of the Constitution".
26. In the case of Prafulla Kumar Das v. State of Orissa, (2003) 11 SCC
614), the Apex Court had observed as under:
"Seniority is not the fundamental right but is merely a civil right. The right of the seniority in this case was also not a vested or accrued right. In this case, the petitioners seek benefit to which they are not otherwise entitled. The legislature, in our opinion, has the requisite jurisdiction to pass an appropriate legislation which would do justice to its employees. Even otherwise a presumption to that effect has to be drawn. If a balance is sought to be struck by reason of the impugned legislation, it would not be permissible for this Court to declare it ultra vires only because it may cause some hardship to the petitioners. A mere hardship cannot be a ground for striking down a valid legislation unless it is held to be suffering from the vice of discrimination or unreasonableness. A valid piece of legislation, thus, can be struck down only if it is found to be ultra vires Article 14 of the Constitution of India and not otherwise. We do not think that in this case, Article 14 of the Constitution is attracted."
27. In Shiba Shankar Mohapatra vs. State of Orissa, (AIR 2010 SC 706), the Hon'ble Apex Court in Para 29, has held as follows:
"29. Thus, in view of the above, the settled legal proposition that emerges is that once the seniority had been fixed and it remains in existence for a reasonable period, any challenge to the same should not be entertained. In K.R. Mudgal (supra), this Court has laid down, in crystal clear words that a seniority list which remains in existence for 3 to 4 years unchallenged, should not be disturbed. Thus, 3-4 years is a reasonable period for challenging the seniority and in case someone agitates the issue of seniority beyond this period, he has to explain the delay and laches in approaching the adjudicatory forum, by furnishing satisfactory explanation."
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28. The case-laws cited by the learned counsel of Applicants holding that in the matter of seniority settled position cannot be unsettled, shall not be construed to propagate and legitimize an illegality. If the seniority has been assigned to the applicants not in accordance with the rules not being a vested right and merely a civil right an opportunity in the form of circulation of draft seniority list is a valid compliance of both principles of natural justice and law. One cannot claim inequity and illegality.
29. An order of reversion is (in its immediate effect) bound to always result in a reduction in rank. Even a reversion from a higher but temporary or officiating rank to a lower substantive rank is in a sense a reduction. But such orders of reversion are not always reduction in rank. If the officer is promoted substantively to a higher post or rank, he gets a right to that particular post or rank and if he is afterwards reverted to the lower post or rank which he held before, it is a "reduction in rank" in the technical sense. The real test in all such cases is to ascertain if the officer concerned has a right to the post from which he is reverted. If he has a right to the post then a reversion is a punishment. If, on the other hand, the officer concerned has no right to the post, he can be reverted without attracting the provisions of Article 311. On this very question of reversion, the Hon'ble Supreme Court in the case of K H Phadnis v. State of Maharashtra (AIR 1971 SC 998) has held as follows:
" It is true that the post which the appellant held was a temporary one, but the post continued for several years. The indications were that the post was practically of a quasi- permanent character. The appellant was reverted neither because the temporary post was abolished nor because he was found unsuitable to continue. The parent department of the appellant did not want him back.
P a g e | 21 of 24 OA.No.020/57/2023 & batch The order of reversion simpliciter will not amount to a reduction in rank or a punishment. A Government servant holding a temporary post and having lien on his substantive post may be sent back to the substantive post in ordinary routine administration or because of exigencies of service. A person holding a temporary post may draw a salary higher than that of his substantive post and when he is reverted to his parent department the loss of salary cannot be said to have any penal consequence. Therefore though the Government has right to revert a Government servant from the temporary post to a substantive post, the matter has to be viewed as one of substance and all relevant factors are to be considered in ascertaining whether the order is a genuine one of "accident of service" in which a person sent from the substantive post to a temporary post has to go back to the parent post without an aspersion against his character or integrity or whether the order amounts to a reduction in rank by way of punishment. Reversion by itself will not be a stigma. On the other hand, if there is evidence that the order of reversion is not "a pure accident of service" but an order in the nature of punishment, Article 311 will be attracted.
30. In the case of Purshottam Lal Das & Others vs The State Of Bihar & Others (2006) 11 SCC 492, the Hon'ble Supreme Court has held as under:
"6. The reasons which weighed by the respondent-State to hold that the promotion was illegal does not suffer form any infirmity. Class III employees could not have been promoted as they belong to the technical cadre and the promotional posts related to non-technical cadre. That apart the Class III employees were already holding Class III post and, therefore, there was no question of promotion to the same class. So far as class IV employees are concerned, their promotion was also not considered in terms of statutory provision. The quota of promotion to Class III from Class IV is fixed and the procedure is provided for deciding the question of promotion. The promotions were granted without placing their cases before the Establishment Committee and the Committee which accorded approval was not properly constituted, and the reservation policy was not followed and promotions were given without adopting the procedure relating to advertisement. The High Court also noted that the appointments were made by the Civil Surgeon though a ban had been imposed by the State Government on appointments. Therefore, the order of reversion in each case cannot be faulted."
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31. In S.P.Vasudeva v. State of Harayana & Others (1976 SCC (1) 236), the Hon'ble Supreme Court has held as under:
" We may in this connection point out that where an order of reversion, as in the present case, of a person who had no right to the post, does not show ex facie that he was being reverted as a measure of punishment or does not cast any stigma on him, the Courts will not normally go behind that order to see if there were any motivating factors behind that order. Certain cases of this Court have taken that view. Certain other cases have taken the view that it is open to the Court to go behind the order and find out if it was intended as a measure of punishment and if so whether the formalities necessary have not been followed. In cases where enquiries have been held before orders of reversion of a probationer to his former lower post or discharge of a probationer or discharge from service of a temporary servant were passed, certain decisions have taken the view that where the enquiry was held in order to find out the suitability of the official concerned the order would not be vitiated. In certain other cases it has been held that the enquiry was held with a view to punish and as the enquiry did not satisfy the requirements of Article 311 the punishment was bad. It appears to us that this theory as to whether the reversion to a lower post of a probationer in a higher post, or the discharge of a probationer, or the discharge from service of a temporary servant was meant as a punishment leads to a very peculiar situation. After all, if such an order gives no reasons the Court will not normally interfere because ex facie there is nothing to show that the order was intended as a punishment. But if the superior official dealing with that case, in order to satisfy himself whether the official concerned could be continued in service, makes enquiries or holds enquiries there is the risk of its being held that the enquiry was really intended for the purpose of punishment. Thus a bona fide attempt to decide whether the official concerned should be continued leads to this risk. There could be no greater punishment than discharge from service and it makes little difference to the Government servant whether he is simply discharged or discharged after an enquiry to find out his suitability. Therefore, if a simple discharge from service is upheld but a discharge after the superior official concerned satisfies himself about the official's fitness to be continued further in service is not upheld on the ground that the order was intended as a punishment it is a curious situation. After all no Government servant, a probationer or temporary, will be discharged or reverted, arbitrarily, without any rhyme or reason. If the reason is to be fathomed in all cases of discharge or reversion, it will be difficult to distinguish as to which action is discharge or reversion simpliciter P a g e | 23 of 24 OA.No.020/57/2023 & batch and which is by way of punishment. The whole position in law is rather confusing. We think it is time that the whole question was considered de novo and it would be better for all concerned and avoid a lot of avoidable litigation if it should be held that the reversion of a probationer from a higher to a lower post, or the discharge of a probationer, or the discharge from service of a temporary servant cannot be questioned except on the basis of mala fides in the making of the order. This Court will not be burdened with a lot of work of a kind about which the feeling of almost all the Judges has been that it is better that they do not come to this Court."
32. In view of the above position and under the facts and circumstances of the case, we are of the view that the decision taken by the respondents to revert all these applicants as Stenographer Grade-II by N.G.O. No.9/2023 dated 20.01.2023, and subsequently promoting them as Stenographer Grade-I by N.G.O. No.11/2023 dated 20.01.2023, is in order.
33. In the result, all these OAs are dismissed being devoid of merits. There shall be no order as to costs.
( B.ANAND ) (SUDHI RANJAN MISHRA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
Dsn/ps/
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