Central Administrative Tribunal - Delhi
Saulesh Kumar vs M/O Finance on 28 August, 2024
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C-3/Item-55 OA-1652/2018 with OA-3996/2018
Central Administrative Tribunal
Principal Bench, New Delhi
OA No.1652/2018
MA No.4233/2018
MA No.1907/2018
MA No.4357/2023
MA No.1848/2018
With
OA No.3996/2018
Reserved on: 29.07.2024
Pronounced on: 28.08.2024
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
OA 1652/2018
1. Saulesh Kumar
S/o Sh. Ram Sanehi Yadav
Aged about 32 years
R/o Flat No.17-B, Vidhata Apartment,
Vasundhara Enclave,New Delhi
2. Kumar Saurav Jayant
S/o Shri Dinesh Kumar
(Aged about 35 years)
R/o 268, Patparganj, Opp-Anand Lok Society
Mayur Vihar Phase-I, Delhi-91
3. Mukesh Kumar
S/o Sh. Bhagwan Das
Aged about 45 years
R/o A 603, Gaur Grandeur Apartment,
Sec - 119, Noida
4. Awan Kumar Singh
S/o Sh. Prem Chand Singh
(Aged about 43 years)
R/o Flat No.9/37, Palm Olympia Sec 16 C
Noida Extension, Noida
5. Amit Vishwakarma
S/o Sh. Om Prakash Vishwakarma
(Aged about 37 years)
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C-3/Item-55 OA-1652/2018 with OA-3996/2018
R/o C-399, Sector 22, Noida
6. Praveen Sharma
S/o Sh. Bachhan Lal
(Aged about 37 years)
R/o T-2, 505, Panchsheel Hynish
GH-08A, Sector-1, Noida Extension
Greater Noida
7. Brijesh Pandey
S/o Sh. D.N. Pandey
(Aged about 38 years)
(Aged about 42 years)
R/o Flat No.G-5, Building No. A 32
Shalimar Garden Extension - 2
Sahibabad, Ghaziabad
8. Santosh Kumar
S/o Shri Naipal Ram
(Aged about 37 years)
R/o 6/192, Chiranjiv Vihar,
Ghaziabad ...Applicants
(Through Shri Kripa Shankar Prasad, Advocate)
VERSUS
1. Union of India
Through the Secretary
Ministry of Finance,
Department of Revenue
Govt. of India,
North Block, New Delhi-110011
2. The Chairman
Central Board of Excise and Customs
Ministry of Finance,
Department of Revenue
Govt. of India,
North Block, New Delhi-110011
3. Chief Commissioner
Cadre Control
Central Excise, Customs & Service Tax Zone
Lucknow
7A, Ashok Marg, Lucknow-226001
4. Ajay Kumar Maid
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C-3/Item-55 OA-1652/2018 with OA-3996/2018
S/o Lt. Shri R.K. Maid
Aged about 54 years
R/o A-202, Swarn Ganga Apptt.
Sector-6, Vasundhara, Ghaziabad
5. L.K. Porwal
S/o Shri R.N. Porwal
Aged about 54 years
R/o C-299, New Panchwati Colony
GT Road, Ghaziabad
6. Anil Kumar Sharma
S/o Late Shri Hazari Lal Sharma
Aged about 55 years
R/o D-533, Gaur Homes, Govind Puram,
Ghaziabad ...Respondents
(Through Sh.N.D. Kaushik & Sh.R.K. Jain, Advocates)
OA 3996/2018
1. Sunil Kumar
S/o Shri Bharat Singh,
R/o Gokulam Apartment
Damodar Colony, Meerut,
Aged about 49 years
(Group `B'), (Inspector)
2. Sanjay Madhwar
S/o Lt. Shri C.K. Madhwar,
R/o E-404, Ansal Elegance Avantika
Phase - II Ghaziabad
Aged about 52 years
(Group `B'), (Inspector)
3. Deepak Kumar Srivastava
S/o Lt. Shri S.P. Lahura
R/o SF - I, IInd Floor, Maya Kunj
Avantika, Ghaziabad
Aged about 47 years
(Group `B'), (Inspector)
4. Kamlesh Chandra Pathak
S/o Lt. Shri T.D. Pathak,
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C-3/Item-55 OA-1652/2018 with OA-3996/2018
R/o Flat No.506, Tower - II
Panchsheel Prim Rose, Ghaziabad
Aged about 46 years
(Group `B'), (Inspector)
5. Sheet Srivastav
S/o Shri D.K. Srivastav,
R/o Flat No.808, Tower - 10
Panchsheel Prim Rose, Ghaziabad
Aged about 46 years
(Group `B'), (Inspector)
6. Suraj Nawani
S/o Shri Jai Prakash Nawani
R/o G-1107, Prateek Laurel,
Sector-120, Noida
Aged about 45 years
(Group `B'), (Inspector)
7. Ram Prasad
S/o Shri D.P. Singh
R/o G-407, Govind Puram
Ghaziabad (UP) - 201 013
Aged about 48 years
(Group `B'), (Inspector) ...Applicants
(Through Shri Shyamal Narain and Shri Ajesh Luthra,
Advocates)
VERSUS
1. Union of India
Through its Secretary
Ministry of Finance,
Department of Revenue
North Block, New Delhi-110001
2. The Chairman
Central Board of Excise and Customs
4th Floor, Hudco Vishala Building
Bhikaji Cama Place, R.K. Puram
New Delhi
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C-3/Item-55 OA-1652/2018 with OA-3996/2018
3. Chief Commissioner (Cadre Control)
Central Excise, Customs & Service Tax
(Lucknow Zone), Lucknow
7A, Ashok Marg, Lucknow-226001
4. Sh. Mukesh Kumar aged about 40 years
S/o Sh. Bhagwan Das
R/o Flat No. A-603, Gaur Grandeur,
Sector 119, Noida 201301
Working as Inspector of CGST in Ghaziabad
CGST Commissionerate
5. Sh.Amit Vishwakarma aged about 32 years
S/o Sh. Om Paraksh Vishwakarma
R/o C-399, First Floor
Sector 22, Noida 201301
Working as Inspector of CGST in Noida
CGST Audit Commissionerate
6. Sh.Santosh Kumar aged about 37 years
S/o Sh. Naipal Ram
R/o H.No. 6/192, Chiranjiv Vihar,
Ghaziabad
Working as Inspector of CGST in Ghaziabad
CGST Commissionerate
7. Sh.Rajnish Kumar aged about 35 years
S/o Sh. Aditya Parakash Srivastava
R/o H. No. 18, Sector 2,
Chiranjiv Vihar, Ghaziabad
Working as Inspector of CGST in Ghaziabad
CGST Commissionerate ...Respondents
(Through Sh.N.D. Kaushik & Sh.R.K. Jain, Advocates)
ORDER
Hon'ble Dr.Chhabilendra Roul, Member (A):-
In both these OAs, the subject matter is the validity/legality of letter dated 24.10.2016 issued by the Central Board of Excise & Customs (henceforth, CBEC), Department of Revenue, Ministry of Finance. As the issue is 6 C-3/Item-55 OA-1652/2018 with OA-3996/2018 the same in both the OAs, these are decided together. For better appreciation of the issue, the said letter dated 24.10.2016 is reproduced below:
"To Chief Commissioner of Central Excise & Service Tax (Lucknow Zone), 7-A, Ashok Marg, Lucknow-226001 Subject:- Representation for implementation of Hon'ble Bombay High Court order in Writ Petition No.298 of 2013 and cancellation of Review DPC held in September, 2007-reg.
Sir, I am directed to refer to your office letter C.No. 11(3)141-CCSC/CR/LKO/14/Pt.1/510 dated 15.06.2016 on the above mentioned subject and to state that the matter has been examined by the Board in other similar cases.
2. In this regard it is stated that similar directions/clarifications have been forwarded to Bhopal, Hyderabad & Jaipur Zone vide Board letter dated 20.10.2015, 08.12.2015 & 12.05.2016 respectively, that the posts of Inspector which have been upgraded to the post of Superintendent are no longer available in the grade of Inspector prior to restructuring. Hence, filling up non- existing vacancies of Inspector on the basis of Recruitment Rules of 1979 of Inspectors prior to 07.12.2002 is not in order and this position should be corrected by conducting review DPCs.
3. In your Zone, 382 posts of Inspectors which have been upgraded to the grade of Superintendents in 2002 during Cadre-restructuring are no longer available in the grade of Inspector. You are therefore requested to review all the DPCs conducted for the period from 06.12.2002 keeping in view of non-availability of 382 posts of Inspectors which were upgraded.
4. This issues with the approval of Member (A).
Yours faithfully, (S.D. Bhasor) Deputy Secretary to the Government of India"
2. Though the applicants in these two OAs have impugned the aforementioned letter dated 24.10.2016 issued by the 7 C-3/Item-55 OA-1652/2018 with OA-3996/2018 Head Office of CBEC, each set of the applicants have approached this letter from different perspectives. To appreciate these differing perspectives, it would be appropriate to delve into the specific relief sought by the respective set of applicant in these two OAs.OA No. 3996 of 2018
The applicants in this OA have sought the following relief:
"8.(a) quash and set aside the impugned order dated 24.10.2016 placed at Annexure A/1 and
(b) direct the respondents to consider further career advancement of the applicants with all consequential benefits.
(c) accord all consequential benefits.
(d) award costs of the proceedings; and
(e) pass any order/relief/direction(s) as this
Hon'ble Tribunal may deem fit and proper in the interests of justice in favour of the applicants."
The applicants are promotee Inspectors belonging to the Cadre Controlling Authority (henceforth, CCA) of the Lucknow Zone. They were initially appointed to the ministerial cadre on various posts such as Stenos, Lower Division Clerks, Upper Division Clerks and were subsequently granted promotion during 2007, 2011 and 2012 but with retrospective effect from 6.12.2002, a day prior to notification of the New Recruitment Rules (RRs), 2002 for the cadre of Inspectors. They were promoted as Inspectors under the 1979 RRs as per the Andhra Pradesh High Court Judgment dated 2.03.2005 in respect of WP No. 8 C-3/Item-55 OA-1652/2018 with OA-3996/2018 7963 of 2004 and other bunch of writ petitions and further communications issued by CBEC vide letters dated 7.05.2006, 19.07.2006, 29.05.2007 and 3.9.2007. While seeking setting aside the order dated 24.10.2016 and directing the respondents to consider further career advancement of the applicants, in effect, the applicants want that no Review DPC should be held and further promotions should be given on the basis of all previous promotions of Inspectors assuming that there was availability of 382 posts, due to "up gradation" of equal number of posts of inspectors to the rank of Superintendents.
OA No. OA No.1652 of 2018 The applicants in this OA seek the following Relief:
8.(A) That issue order or direction, directing respondents to revise the inter-se seniority list of Excise Inspectors by keeping in view of non-availability of 382 posts Inspectors which were upgraded to the posts of Superintendents during cadre restructuring, and not to give effect to illegal notional promotions made in the Central Excise Inspectors for the period 1.7.1998 and 6.12.2002, and till finalization of review DPC in consonance with the order dated 24.10.2016, no regular DPC may be conducted. The applicants are seeking relief against order dated 03/04/2018 and 18/04/2018. B) To issue order or direction, directing to publish originally vacancy register in the grade of Central Excise Inspector for the period between 1.7.1998 and 6.12.2002. C) To issue order or direction not to give effect the illegal notional promotions made in the grade of Central Excise Inspector for the period between 1.7.1998 and 6.12.2002.
C) To issue order or direction not to give effect the illegal notional promotions made in the grade of Central Excise Inspector for the period between 1.7.1998 and 6.12.2002.
9C-3/Item-55 OA-1652/2018 with OA-3996/2018 D) To issue any other order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case."
The applicants claim that they are directly recruited Inspectors of Central Excise Department, Deptt. of Revenue, GOI. They are seeking direction to the Respondents to revise the inter-se seniority of Excise Inspectors by keeping in view of non-availability of 382 posts of Inspectors which were deemed abolished as per cadre review effected in 2001. They further pray not to give effect to the alleged illegal promotions made during 1.07.1998 and 6.12.2002 till finalization of review DPC ordered vide letter dated 24.10.2016. In other words the applicants want the review DPC should be effected and the orders dated 3.04.2018 and 18.04.2018 seeking promotion of existing Inspectors to the rank of Superintendents, without effecting review DPC, should be quashed. The main ground taken by these applicants in their OA is that the CBEC, vide its letter dated 24.10.2016 has rightly concluded that Bombay High Court judgment in Writ Petition No.298/2013 has attained finality and accordingly, the posts of Inspectors which have been upgraded to the post of Superintendents were no longer available in the grade of Inspectors prior to the restructuring. Hence, filling up non-existing vacancies of Inspectors on the basis of RRs of 1979 prior to 7.12.2002 was not in order. Hence, the 10 C-3/Item-55 OA-1652/2018 with OA-3996/2018 order dated 24.10.2016 directing the Lucknow CCA to review all DPCs in respect of these 382 non-available posts of Inspectors is in order.
3. Notices were issued to the respondents and they have filed their counter reply, to which the applicants in OA 3996/2018 have also filed their rejoinder. Applicants in OA 1652/2018, however, chose not to file any rejoinder.
4. Mr. Shyamal Narain and Mr. Ajesh Luthra, learned counsel for Applicants in OA no. 3996/2018 made the following submissions:
4.1 The applicants belong to the clerical ministerial cadre.
There was a cadre restructuring exercise undertaken by the respondents in the year 2001, and accordingly new Recruitment Rules for the post of inspectors was notified. The re-structured cadre would come into existence from the date of notification of the Recruitment Rules, precisely on 21.04.2003. In terms of the cadre restructuring exercise, there were about 382 posts of inspectors created/ upgraded in Lucknow Zone to the post of Superintendent. Thereby the applicants were promoted to the post of inspectors against the pots so left behind by the persons who were holding the post of inspectors and shifted to the upgraded/ created post of superintendent on 06.12.2002. The said exercise i.e. promotion was done in terms of the Judgment of the Hon'ble High Court of Andhra Pradesh. These 11 C-3/Item-55 OA-1652/2018 with OA-3996/2018 promotions were made effective by an order dated 29.05.2007, retrospective from 06.12.2002. Learned counsel for the applicants draw attention to order dated 29.05.2007 at page 128 of the OA. Para 3 of the same reads as under:-
"3. Your interpretation that 382 Inspectors were promoted to the grade of Superintendent against regular vacancies vide Estt. Order No. 103/2002 dated 31.10.2002 and an equal number of posts of inspectors stood abolished / lapsed, is not correct. According to the Board's aforementioned clarification, these 382 resultant vacancies will also have to be taken into account while working out the vacancies in the grade of Inspector as on 6.12.2002. In other words, promotions in the grade of Inspector may be made by taking into account all the vacancies existing on 6.12.2002 (including these 382 vacancies arisen due to promotion of Inspector to the grade of Superintendent).
4.2 Learned counsels for the applicants draw attention to one of the promotion order annexed at page 19, that reconfirms that these promotions were made in compliance of the decision of the Hon'ble High Court of Andhra Pradesh dated on 02.03.2005 and after seeking approval/clarification from the boards of the CBEC.
4.3 Mr. Shyamal Narain states that precisely same issue, as in the instant O.A. came up for consideration before a bench of this Tribunal at Mumbai in OA No. 454/2006 and subsequently in another OA No. 510/2007, nevertheless for Mumbai zone. The decision in OA No. 510/2007 was assailed before the Hon'ble High Court of Bombay in W.P (C) No. 298/13 wherein the Hon'ble High Court of Bombay had passed certain orders on 28.10.2013, which are placed at page 153/154 of the O.A., though on a later date i.e. 12 C-3/Item-55 OA-1652/2018 with OA-3996/2018 16.01.2014 the said Writ Petition was withdrawn by the respondents and all points thereto were kept open with a liberty to the respondents to prefer a legal representation.
4.4 Mr. Narain submits that when the instant O.A. was listed initially, while issuing notice, the Tribunal had granted the applicants' prayer for interim relief on 24.10.2018. He confirms that the order dated 12.05.2016, which is in pari materia to the order dated 24.10.2016 and finds mention and the impugned order in the instant OA at Annexure-A/1 was stayed by the Jaipur Bench by an order dated 03.06.2016. The order dated 24.10.2018, passed by the Tribunal reads as under :-
"4. A bare perusal of the impugned Annexure A/1 dated 24.10.2016 clearly indicates that the impugned action was initiated in purported implementation of the order of Hon'ble High Court of Bombay in WP(C) No. 298/2013 but the Annexure A/14 which is a copy of the order dated 16.01.2014 in WP(C) No. 298/2013 shows that the WP was disposed of as withdrawn with liberty to file a revew petition. An identical impugned order in respect of Jaipur Zone was already stayed by a Co-ordinate Bench of this Tribunal.
5. In this view of the matter, the issues deserve to be examined. List the MA No. 4502/2018 and OA for filing reply, on 14.11.2018. Till then, there shall be status quo."
4.5 Mr. Narain further submits that as the order dated 12.05.2016 was stayed by the Jaipur Bench of the Tribunal, the order dated 24.10.2016 has been stayed by the Principal Bench of the Tribunal on 24.10.2018 and in view of the interim protection extended by the Jaipur 13 C-3/Item-55 OA-1652/2018 with OA-3996/2018 Bench, the order was not given effect to by the respondents themselves.
4.6 Learned counsels for the applicants draw attention to order dated 24.10.2016 vide which the 382 persons who were promoted to the post of inspectors, against the posts that were left behind by the persons holding the post of inspectors and promoted to the post of superintendent, were sought to be reverted.
4.7 Mr. Narain states that though admittedly there are only seven applicants in the OA and by the interim order dated 24.10.2018 status quo w.r.t. the order 24.10.2016 was to be maintained, to elaborate the order itself was stayed, irrespective of the outcome of the OA. He states that during the pendency of this OA, the respondents came up with three fresh establishment orders bearing Nos. 11,12 and 13 dated 19.02.2021. In terms of these orders, 711 inspectors in similar circumstances were demoted by the respondents and out of the 711, 566 were re-promoted with reduced seniority and in the third category i.e. the left over inspectors, they were promoted on Ad-hoc basis with no seniority. These orders were assailed before the CAT Allahabad Bench in OA No. 272/2021 which came to be allowed on 27.04.2022. The order dated 27.04.2022 was assailed by the respondents before the Hon'ble High Court 14 C-3/Item-55 OA-1652/2018 with OA-3996/2018 of Allahabad and no interim protection has been extended against the order dated 27.04.2022.
4.8 Learned counsel for the applicants Mr. Shyamal Narain, while drawing attention to the impugned order, summarizes his contentions as under:
a. The two orders as reflected in Para 2 of the impugned order i.e. 08.12.2016 and 12.05.2016 are in fact identical orders with different dates pertaining to Bhopal Zone and Jaipur zone respectively. To confirm that these orders were in pari materia to the order dated 24.10.2016, which has been challenged in the instant OA.
b. While the applicants were promoted to the post of inspectors, the Judgment of the CAT Mumbai Bench was very much a guiding factor before the respondents.
c. The Hon'ble High Court of Bombay did not decide the WP on merits and it was dismissed as withdrawn and, therefore, in fact while issuing the impugned order when the respondents have mentioned that it was in implementation of the Hon'ble Bombay High Court's decision, there was no decision in the first place by the Bombay High Court to be implemented by the respondents.
d. Implementing the decision rendered in the Hon'ble Andhra Pradesh High Court, the applicants were extended regular promotions retrospectively from the year 2002, therefore, the same was not open for any review by the respondents.
e. The respondents have issued these orders summarily without giving an opportunity to the applicants to explain their case. Accordingly, it is in complete violation of the principles of natural justice.
f. The applicants had not, at any stage misrepresented to the respondents for seeking the promotions. The respondents have implemented the decision of the A P High Court, as is reflected by the order dated 29.05.2007 and granted the promotions. After completing nearly 22 years, it would not be appropriate on the part of the respondents to change the seniority or revert the applicants.
g. That the applicants were promoted to the post of inspectors, in view of an up-gradation of 382 posts, the respondents have taken a u-turn by reviewing the facts and stating that the posts were no longer available as reflected in the communication dated 29.05.2007.15
C-3/Item-55 OA-1652/2018 with OA-3996/2018 h. The decision in OA No. 414/2016 of the Coordinate Bench of this Tribunal at Jaipur, at several places mentions that the bench was bound by the decision of the Bombay High Court dated 28.10.2013. Apparently there is no such decision of the Bombay High Court, in fact the only decision of the Bombay High Court was in the Writ Petition was dismissed as withdrawn. Therefore, the decision of the Jaipur Bench is per incuriam and cannot be relied upon.
i. The decision of the Hon'ble Supreme Court in D. Raghu and Ors. Vs. R Basaveswarudu & Ors., wherein the decision of the Andhra Pradesh High Court in compliance of which the applicants were extended the post of inspector was put to challenge. While deciding the same, in para 121 of the Civil Appeal No. 1976/2009 decided on 05.02.2020 placed at page 186 of the OA, the Hon'ble Apex Court held as under:-
"Civil Appeals Nos. 1970-1975 of 2009 are disposed of as follows:
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 hur service 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 Rules 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, we direct that the promotions shall be notional where promotions have already been effected, however, entitling the parties to seniority and pensionary benefits. The above exercise shall be completed at the earliest."
He states that the applicants were promoted against the vacancy that arose before 07.12.2002 and promoted in terms of the decision of the Hon'ble Andhra Pradesh High Court. The OA cannot be decided in terms of the decision of the Jaipur Bench of this Tribunal. In para 9 the Jaipur Bench has recorded that the respondents have not clearly made up their mind as to what they would be doing with respect to the applicants after the decision of the Hon'ble Supreme Court in the case of D Raghu (supra) against the order passed by the Andhra Pradesh High Court. In fact the respondents ought to have brought the correct facts before the Jaipur Bench and that the respondents had already proceeded with the impugned order dated 24.10.2016, which is in pari materia to the impugned order in the present OA. Therefore present OA be decided independent of the decision of the Bench at Jaipur.
4. Learned counsels for the applicants state that, at this stage, they have concluded his arguments but he may be granted liberty to revert the arguments put forth by the respondents as rejoinder."
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5. Mr. Kripa Shankar Prasad, learned counsel for Private Respondent 4 in OA no. 3996/2018 and counsel for applicants in OA no. 1652/2018 made the following submissions:
5.1 Mr. Kripa Shankar draws attention to the impugned order dated 24.10.2016 and states that the title of the order reads that it has been passed deciding representations for implementation of decision of the Hon'ble High Court order in Writ Petition No. 298/2013 and cancellation of the Review DPC held in September.
While drawing attention to the order passed by the Bombay Bench of this Tribunal, which was assailed before the Hon'ble High Court by way of the said Writ Petition.
5.2 Drawing attention to the decision of the Bench of this Tribunal deciding OA 454/2006 on 06.06.2007 he states that the Tribunal while dismissing the OA in para 12,13,14,15 has clearly held that in pursuance of the cadre restructuring exercise, the post of inspectors were nevertheless upgraded to the post of superintendent and therefore there were no post existing for the post of inspectors to be filled in by the applicant. He states that the judgment clearly states that the post of inspector stood abolished and post restructuring exercise the post that were added to the inspectors were filled by direct 17 C-3/Item-55 OA-1652/2018 with OA-3996/2018 recruitment. He states that this fact has been clearly indicated in the said judgment and in para 14,17,18 & 19 which are reproduced below:
"12. We have heard both the learned counsel and have perused the material available on record. It is not disputed by either party that the number of vacancies which had arisen before should be filled up in accordance with the recruitment rules of 1979. After a judgment of Hon'ble High Court of Andhra Pradesh the Ministry of Finance had issued specife this regard vide circular dated 26.09.2005 The only dispute relates to the number of vacancies which were available in the cadre of Inspectors before 07.12.2002 date when new Recruitment Rules came into force. It has been contended from the applicants' side that such number as per the communication dated 10.01.2006 the Chief Commissioner, Central Excise, Mumbai Zone-1 addressed to the Ministry of Finance was 812 including 168 vacancies. for promotees and 644 for direct recruits. It was mentioned in the scheme of restructuring itself issued by the Ministry of Finance vide letter dated 19.07.200), that no direct recruitment will be made to the various grades in the year 2001- 2002 without the approval of the Ministry as the Cabinet has approved a one time relaxation for filling up all vacancies by promotion in all cadres. This was reiterated by the Ministry of Finance in its letter dated 13.07.2006 that vacancies as existed before cadre restructuring 1.0. up to 31.12.2002 are to be created as promotion quote vacancies. Thus, there is no dispute that all vacancies were to be filled up by promotion only.
13. We observe that the number of vacancies communicated to the Ministry by Commissionerate of Central Excise, Mumbai was #12. However, in that, very letter of the Commissionerate, it is mentioned that the above figure included 481 vacancies such on account of promotion of Inspectors to the grade ot Superintendent consequent to cadre restructuring. The Ministry of Finance had issued instructions on restructuring of Customs and Central Excise Department vide letter dated 19.07.2001 Thereafter vide Letter dated 03.04.2001 the Ministry of Finance aunt to all Commissionerate a brief summary of the approximate benefits accruing to different cadres. In the information enclosed with this letter dated 03.08.2001 clearly mentioned the Gedre of Superintendent has expanded by 62% and as a result 5451 Inspectors will inspectors will be promoted as Superintendent. Obviously, the post in the cadre of Inspectors which fell vacant as a result of their promotion against the newly created post of Superintendent available by way of cadre restructuring cannot be treated as the number of vacancies which were available before cadre restructuring. Thus, the number of 491, which was Included in the total number of vacancies 812 of 18 C-3/Item-55 OA-1652/2018 with OA-3996/2018 Inspectors, has to be excluded for arriving at the correct figure of vacancies before implementation of policy relating to cadre restructuring. Although obers releten co cadre restructuring ween Jasued the month of July/August, 2001 but since the amended recruitment rules for the post of inspectors came into force only from 07.12.2002, the ministry had issued instructions, in compliance with the judgment of Hon'ble High Court of Andhra Pradesh that all vacancies before this date should be filled up by following 1979 recruitment roles. Thus, the number of vacancies which were available at the and at December, 2002 would consist of backlog of vacancies is the cadre of Inspector before restructuring plus the vacancies arising in normal course after restructuring but before 31.12.2002. If the additional vacancies which have become available during this period was less than the number of posts of Inspectors which got abolished due to upgradation to the post of Superintendent cadre restructuring then there will be no net addition. However, as per the Government of India circular dated 24.11.2006 611 vacancies which have occurred between 01.04.2001 and 31.12.2002 due to cadre restructuring or otherwise are to be treated as promotion quota vacancies and to be filled up in accordance with the old recruitment rules of 1979.
14. Thus, it is quite apparent from the letter dated 10.01.2006 that the number of vacancies in the cadre of Inspector communicated to the Ministry included the vacancies which had arisen on account of promotion of Inspector to the additionally granted posts of Superintendents in the scheme of cadre restructuring. We have no hesitation in holding that this figure of cannot be included in the number of vacancies available before restructuring since they have occurred as a direct consequence of the implementation of restructuring scheme. By excluding this number, the real number of vacancies works out to 331. As per the written statement given by the respondents, this included 323 vacancies of direct recruitment and 8 for promotion quota. However, since all the backlog of vacancies 4s well as the vacancies which occurred between 01.04.2001 and 31.12.2002 are to be treated as for promotion quota, all these 331 vacancies were to be filled up by promotion following the provision of 1979 recruitment rules.
15. It was contended from the applicant's side that the respondents have not followed the instructions issued by the Govt. of India for complying with the directions given in the Judgment of Hon'ble Andhra Pradesh High Court. We find that the said judgment essentially relates to the dispute between the Inspector of Central Excise and Data Entry Operators. The Hon'ble High Court observed as Therefore as can be seen from 1979 Rules, no channel was created to Data Entry Operators and they were getting promotion in their respective grade A. C. O. The communication of the Government of India dated 19.7.2001. The Government has approved the restructure of the Customs and Central Excise Department.19
C-3/Item-55 OA-1652/2018 with OA-3996/2018 Consequently, restructuring of various posts has taken place including the number of posts and the nomenclature. We have to necessarily hold that the finding of the Central Administrative Tribunal that the Recruitment Rules in respect of the Inspector as well at S.T.A. should be given effect from 19.7.1997 18 illegal and runs counter to the settled principles of interpretation statutes. Therefore, we accordingly set aside the finding and hold that the Rules in respect of the S.T.A. and Inspectors shall be deemed to have come into force only from the date of publication of the Rules in the Gazette viz. WILA DECOCS From 20.1.2003 and 2.12.2002 respectively."
16. It has also been observed by the Hon'ble High Court in the Judgment cited above that the Courta should not place reliance on decisions without discussing as to how the factual situation fits in with the fect altuesion of the decision on which reliance is placed. follows It further observed as "Observations of courts COLLO or send us Euclid's theorens nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary tot Judges to embark upon lengthy discussions, but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpres judgments. They interpret words of statutes: their words are not to be interpreted as statutes".
17. The ratio laid down by the Hon'ble High Court in the Judgment cited above relates to a case when a particular cadre was not eligible for consideration for promotion as Inspector under the Rules which were prevalent when vacancies arose: However, in the present case the cave to slightly different since the applicants were eligible for promotion as Inspectors, under the old rules and are also eligible under the new rules, Here the dispute is not regarding their eligibility as case of DE0S to which the judgment of A.7. High Court relates. Moreover, no such averments have been made from the applicants' side that the respondents have filled up some vacancies which had arisen earlier under the new Recruitment Rules. The respondents are not obliged to fill up all the existing vacancies. The only restriction on them vacancy which had arisen before restructuring should be filled up by resorting to the new Recruitment Rules. When the benefit of the restructuring scheme to include all these posts in promotional posts extended, would simultaneously attract other provisions of the restructuring scheme as well. Only because of the scheme of restructuring all these 323 direct recruitment posts have been included in the promotion quota.
18. The restructuring of a particular department has to be seen as a whole chain and not the restructuring of one individual cadre. In a restructuring scheme generally the posts at higher level are increased and the number lover in 20 C-3/Item-55 OA-1652/2018 with OA-3996/2018 the chain is reduced with a view to provide better promotional avenues. The cadre of Inspectors cannot be examined in isolation ignoring the cadre of Superintendents or Appraisers. As mentioned above, even out of 331 posts of Inspectors remaining available after restructuring, as many as 323 related to Direct Recruitment quota.
19. Thus, as a result of restructuring scheme the number of vacancies of Inspectors are to be filled in by promotion were only 33) since 461 out of 612 posts got upgraded to that of Superintendent in cadre restructuring. Subsequently, side letter dated 24.11.2006 some more posts were included in the promotion quota. Therefore, the action of respondents in filling up 149 posts by promotion in order and does not call for any judicial intervention. In view of the foregoing, we hold that the O.A. is devoid of merit and the same is accordingly dismissed. No order as to costs." 5.3 Mr. Prasad further states that precisely this order was assailed before the Hon'ble High Court of Delhi by way of a Writ Petition No. 298/2013 and the Hon'ble High Court dismissed the Writ Petition by passing order which reads as under:
1. On the last date, we have heard the submissions of the learned counsel appearing for the petitioners in Writ Petition No. 4262 of 2013. Today we have heard the submissions of the learned counsel appearing for the petitioner in (OS) Writ Petition No. 298 of 2013.
2. The Tribunal has proceeded on the footing that its earlier judgment and Order dated 6th June, 2007 has attained finality. The Tribunal has relied upon the findings recorded in the said Judgment in paragraphs 18 and 19 which have become final. Prima facie, the Tribunal appears to be right in holding that the judgment and Order dated 6th June, 2007 has attained finality.
3. The learned counsel appearing for the petitioners in (OS) Writ Petition No. 298 of 2013 seeks time to take instructions. Only in view of this request that we are adjourning the said petitions till 20th November, 2013.
5.4 Mr. Kripa Shankar Prasad further states that the Writ Petition was in fact preferred against another decision of 21 C-3/Item-55 OA-1652/2018 with OA-3996/2018 this Tribunal in OA 510/2007 decided on July 2007. He states that the Writ Petition 298/13 was decided by the Hon'ble High court of Bombay, relying on the judgment passed in 454/2006 of this Tribunal.
5.5 To clarify, there were two OAs pending before Bombay Bench of this Tribunal i.e. 454/2006 & 510/2007.
However, the decision in 510/2007 was assailed by the respondents by way of WP (C) No. 298/2013 and the same was dismissed relying on the decision in 454/2006. He states that the cadre restructuring exercise was undertaken by a proposal dated 03.08.2001 which was subsequently placed before the Cabinet and the same was accorded approval thereto.
5.6 Mr. Kripa Shankar, while continuing his arguments, states that though it is correct that the applicants have been appointed against the substantive vacancies that came into being after the cadre restructuring exercise undertaken by the respondents. These vacancies were filled on direct recruitment basis by a selection process initiated by the respondents thereafter and they have been continuing on the said post since their date of appointment. To clarify, his basic grievance is, the order dated 24.10.2016 passed by the respondents pursuant to the decision of the Board, which is stated to be passed in compliance of the decision by a Coordinate Bench of this 22 C-3/Item-55 OA-1652/2018 with OA-3996/2018 Tribunal at Mumbai in OA Nos. 454/2006 and 510/2007 is not being implemented. He states that the said order has been impugned by the applicants in the instant OA in 3996/2018.
5.7 Mr. Kripa Shankar further submits that there were two applications decided by the Bombay Bench of this Tribunal i.e. 454/2006 & 510/2007. 454/2006 was decided on 06.06.2007 and 510/2007 was decided on 16.12.2010. The order in OA No. 510/2007 was assailed before the High Court of Mumbai by way of Writ Petition No. 298/2013 and another Writ Petition 4262. To clarify 298/2013 was preferred by the official respondents. This Writ Petition filed by the official respondents was subsequently withdrawn by the respondents themselves on 16.01.2014. He submits that in view of the respondents withdrawing the Writ Petition No. 298/2013 as a sequel the orders passed in OA Nos. 454/2006 and 510/2007 stands confirmed.
5.8 He draws attention to the decision of this Tribunal in OA 510/2007, para 12,16,19 of which read as under:
"12. The official respondents have filed their reply contending that although by order dated 06.06.2007 in OA No. 454/2006 the Tribunal had decided that 449 posts of Inspectors upgraded to the post of Superintendent in the cadre restructuring did not result in corresponding vacancies in the grade of Inspectors, it was later on decided that the upgradation from the post of Superintendent to Inspector took effect on 07.12.2002 and that therefore corresponding 449 vacancies of Inspectors resulted on 06.12.2002. It is further contended by the 23 C-3/Item-55 OA-1652/2018 with OA-3996/2018 official respondents that after the judgment dated
06.06.2007, the Competent Authority decided that the reduction in posts of Inspectors can take effect only from 07.12.2002 and that therefore it was concluded that there were corresponding number of 449 vacancies of the Inspector in the pre-restructured cadre on 06.12.2002. The official respondents have further contended that after the judgment dated 06.06.2007 in OA No. 454/2006, the matter was re-examined by them and it was decided to fill up 449 vacancies of Inspectors in the pre-restructured grade on 06.12.2002. The official respondents have further contended that the said interpretation was arrived at on the basis of letter dated 29.05.2007 addressed by the Board to the Lucknow Commissionerate in order to ensure uniformity in all Commissionerates. The official respondents have also raised a plea in their written statement that the applicants are reagitating the same issue which was raised by them in OA Nos. 384,479 and 492 of 2006, which was dismissed vide judgment dated 13.07.2007.
16. The main issue involved in the present OA is, therefore, whether after adjudication of an issue by this Tribunal, it is still open to the respondents to take a contrary decision. This question has been considered by the Hon'ble Supreme Court in the case of Hindustan Aeronautics Ltd., Banglore Vs. CTI (2000), SCC 365. In para 6 of the judgment, the Hon'ble Supreme Court held as under-
6: "Thus it is a settled Law that once the Courts have declared the Law on the question arising for consideration, it is not open to the court to direct that a circular should be give effect and not the view expressed in the decision of the Court."
In the light of aforesaid judgment of the Hon'ble Supreme Court, it is not open to the official respondents to take a decision and hold that 449 vacancies of Inspectors were available in the pre-restructured cadre on 06.12.2002 after it was expressly held by this Tribunal in its judgment dated 06.06.2007 that 449 pots of Inspectors got upgraded to that of Superintendent for cadre restructuring and the same were rightly not filled up by the department. Therefore, the action of the official respondents in conducting review DPC for filling up additional 449 vacancies of Inspectors by impugned order dated 25.09.2007 deserves to be declared as illegal and consequently the promotion orders dated 13.06.2008 and 28.01.2009 are also illegal to that extent. In fact, the respondents seek to create confusion and uncertainty in the service by trying to unsettle a settled and admitted position. The respondents cannot take such somersault.
19. In this connection, it may be noted that despite effecting the restructuring and opening channel of promotion to the applicants to the post Inspector in the year 2002, under the garb of implementation of the 24 C-3/Item-55 OA-1652/2018 with OA-3996/2018 Hon'ble A.P. High Court Judgement, the promotions to the cadre of Inspector are still being effected only from amongst ministerial staff by somehow finding vacancies as on 6.12.2002. By doing so, the entire objective behind the restructuring is being frustrated. After the order dated 6.6.2007, it was not open to the respondent to show that 449 vacancies were available as on 6.12.2002. This action of the Department has resulted in affecting excess promotions against non- existing vacancies and such excess promotions can not be regularized by utilizing the future vacancies arising after cadre restructuring." 5.9 Mr. Prasad states that order of the Board dated 29.05.2007 has been declared as illegal by the Bench at Mumbai in 510/2007 and promotions based on the said order have been quashed.
5.10 Mr. Kripa Shankar Prasad, learned counsel for applicants further submits that the Jaipur Bench of this Tribunal has decided the issue at stake conclusively in OA No. 414/2016 on 26.09.2022. He reiterates that the impugned order in the instant OA dated 24.10.2016 is pari materia to the order dated 12.05.2016 passed by the respondents and was the subject matter of the Jaipur Bench and accordingly the interim directions were extended to the applicant. Accordingly, once the Jaipur Bench has decided the OA No. 414/2016, putting the issue at rest present OA should be decided on the similar facts. He states that the facts of this OA have engaged attention of Hon'ble Apex Court in Civil Appeal No. 1976/2009, D. Raghu Vs. R. Basaveswarudu, which has been decided by the Hon'ble Apex Court by passing a detailed judgment on 05.02.2020. He submits, thereafter a Coordinate Bench of 25 C-3/Item-55 OA-1652/2018 with OA-3996/2018 this Tribunal at Lucknow has also decided the issue at stake in OA No. 238/2013 on 03.07.2024 placing reliance of the decision of Hon'ble Apex Court in D. Raghu (Supra). He draws attention to para 109 of the said judgment which reads as under:
"109. The case in brief, set up by the four applicants before the Tribunal, was as follows:
Applicant nos. 1 and 2 were appointed as Lower Division Clerk (L.D.) and they were working as such. Applicant nos. 3 and 4 were appointed as L.D. Clerks and were working as U.D. Clerks. Applicant nos. 1 and 2 set the claim for promotions as U.D. Clerk under the Recruitment Rules of 1979. Applicant nos. 3 and 4, on the other hand, claimed promotion as Tax Assistant under the said Rules. There is reference to the various orders, which we have already referred to in connection with the post of Inspector, including order dated 19.07.2001. It is the further case that the respondents who, it may be noted, were official respondents, had conducted DPC for all other cadres upto Inspectors and issued promotion orders. Only with regard to the post of Inspector, promotion orders were not Issued before 31.12.2002 in view of the stay passed in
0.A. 1362 of 2002. The stay was vacated on 31.12.2002 and the promotion orders were issued on the same day. It is further stated that promotions were given to the extent of 214 on 31.12.2002. Due to the delay, U.D. Clerks were not being considered for promotion as Tax Assistants and L.D. Clerks for U.D. Clerks. There is discrimination. Meanwhile, new Recruitment Rules, i.e., STA Rules 2003 and Tax Assistant Rules 2003, which we have already referred to, have come into force in the process of restructuring and re-designating of the posts. The said Rules are prospective in nature. The old Rules prevailed till the new Rules came into force. Even if the DPC is conducted after 31.12.2002, the vacancies that will be considered would be only those which have arisen on or before 31.12.2002. The restructuring cannot take away the accrued rights. They sought promotion as per the old Rules. A direction was sought to promote them under the Rules as U.D. Clerks and Tax Assistants from the date of their eligibility and availability of vacancies with all consequential benefits."
5.11 Mr. Prasad further submits that the protection extended by the Hon'ble Apex Court was only with respect to 214 promotions extended on 31.12.2002, while the applicants were promoted post 2002, to be precise 2007- 2008 and, therefore, he states that the Lucknow Bench of this Tribunal has quashed the promotion. He states that the order by virtue of which the applicants were extended 26 C-3/Item-55 OA-1652/2018 with OA-3996/2018 promotion, dated 19.09.2012, 07.05.2013 and 05.07.2013 have since been quashed by this Tribunal at Lucknow Bench.
5.12 Mr. Prasad further submits that a contempt petition was preferred before the Hon'ble Apex Court alleging wilful defiance of direction No. 22 of the judgment in D.Raghu (supra). It was alleged that the Establishment order dated 19.02.2021 was issued by the respondents in violation of this direction. The Hon'ble Apex Court, while dismissing the said CP on 06.10.2021, has recorded that the issue is pending before the Lucknow Bench of this Tribunal. He states that since the Lucknow Bench has also decided the issue at stake, this Tribunal is obliged to follow the decisions of Jaipur and Lucknow Bench respectively.
6. Mr. R.K. Jain, learned counsel for the Official Respondents in OA no.1652/2018 made the following submissions:
6.1 Mr. R K Jain states that it has been contented by the applicants themselves that they are identically placed to the applicants in OA No. 414/2016 which was pending consideration before the Jaipur Bench, Central Administrative Tribunal at the relevant point in time. The OA No. 414/2016 has been decided on 26.09.2022, and the instant O.A. be decided on the lines of decision in O.A. 27 C-3/Item-55 OA-1652/2018 with OA-3996/2018 414/2016. He submits that the argument of the learned counsel for the applicant that the decision in OA No. 414/2016 per incuriam is misplaced, as according to him interpretation of per incuriam would mean that a judgment has been passed ignoring a judgment passed by another Bench which is not so in the present case. He states that while deciding the OA the Jaipur Bench has in fact not ignored any judgment passed by this Tribunal. He confirms that on the issue at stake no other judgment has been passed by any Bench of this Tribunal and judgment passed by the Jaipur Bench is the first decision on the issue. He states that in the final order passed by the Jaipur Bench, the Tribunal has considered the present facts and has remanded it back to the respondents to do the needful in light of the position of the Apex Court in D. Raghu. The said judgement is placed on record by way of MA No. 109/2024 by the respondents on 15.03.2024 at page 13 onwards. He elaborates that in terms of the directions of the Tribunal the respondents are duty bound to revisit the issue in light of the Apex Court in D. Raghu. He states the order dated 12.05.2016, impugned before the Jaipur Bench is pari materia to the impugned order dated 24.10.2016, which is challenged in the instant OA, therefore applicants shall be bound by the said decision. He states that the applicants have nowhere disputed that the issue of the instant OA is different from the issue decided by the Hon'ble Apex Court 28 C-3/Item-55 OA-1652/2018 with OA-3996/2018 in D Raghu (supra) or that they same would not apply to the present facts. The operative portion of the decision of this Tribunal in OA 414/2016 decided by the Jaipur Bench is reproduced below:
"10. We are, thus, disposing this OA with a direction to the official respondents to take appropriate fresh decision of the Hon'ble Supreme Court in D.Raghu's case (supra). Needless to mention, it shall be open for any party to raise the matter at an appropriate forum, if such fresh decision violates any law of the land (including the aforementioned decision of the Hon'ble Supreme Court). No costs."
6.2 Mr. Jain states that the respondents as well as the applicants both are bound by the decision of the Hon'ble Apex Court. In implementation of the Hon'ble Apex Court decision dated 05.02.2020 passed in Civil Appeal No. 1970/1975 of 2009 in D Raghu (supra), the respondents have issued an OM on 01.06.2022, wherein the competent authority after the approval of the Board, instructing all the zones of CBIC to follow the judgment. The order dated 01.06.2022 rather incorporates various paragraphs of the said judgment, that may be guiding factor in deciding the issue for the Zones.
He states that it is correct that three orders dated 19.02.2021 were issued by the respondents, ignoring the decision of the Honble apex Court In D Raghu case, that were challenged before Allahabad Bench in OA No. 272/2021 and the said O.A. has been allowed by the bench at Allahabad. He clarifies that the Lucknow Zone was 29 C-3/Item-55 OA-1652/2018 with OA-3996/2018 ignorant about the decision of the Hon'ble Apex Court for the reasons first, there was no order by the competent authority that the judgment would be implemented in all the zones and second the Lucknow Zone not a party in the proceedings. The litigation before the Bombay Bench and Hyderabad Bench was pertaining to the respective zones only. While drawing attention to the decision of the Hon'ble Apex Court para 64 at page 119, he states that the respondents are rather obliged to follow the decision of the Hon'ble Apex Court and an opportunity be extended to them to revisit the entire issue in light of the decision of the Jaipur Bench.
7. Mr. Shyamal Narain, learned counsel for private respondents in OA no. 1652/2018 in his rejoinder drew attention to an order dated 03.07.2024 in OA No. 238/2018 and submits that there are some factual errors in the said order and the applicants in the said OA are contemplating filing a review/correction/recalling of the order dated 03.07.2024. He submits that on identical facts, on 18.07.2024 the Lucknow Bench itself allowed in OA No. 95/2021, by following the decision of a coordinate Bench at Allahabad in OA 272/2021 decided on 27.04.2024. He states that the decision of the Allahabad Bench of this Tribunal in O.A. 272/2021 is pending consideration before the Hon'ble High Court of Allahabad in a Writ Petition, 30 C-3/Item-55 OA-1652/2018 with OA-3996/2018 wherein the Hon'ble High Court of Allahabad has though issued notice, have rejected the interim prayer. He therefore, states that as recorded by the Hon'ble Apex Court in order of contempt dated 06.10.2021 preferred by the petitioner before the Hon'ble Apex Court in CP No. 423- 428/2021 in D.Raghu (Supra), where it finds mention that the matter is pending before the Lucknow Bench is in fact not the OA No. 238/2013 as stated by the learned counsel for the applicant, but is in fact in OA No. 95/2021 which has been allowed by the Lucknow Bench on 18.07.2021. He further seeks a short adjournment to conclude his arguments.
8. The issues relevant for the relief sought by the applicants in both the OAs.
From the pleadings of the respective parties in both the OAs and the submissions by the learned counsels the following relevant issues are culled out:
Issue no. 1 Whether there was any "up gradation" of posts of Inspectors to that of Superintendents in various Cadre Controlling Authorities/Zones under the jurisdiction of CBEC as per the restructuring effected vide letter dated 19.07.2001?
Issue No.2 31 C-3/Item-55 OA-1652/2018 with OA-3996/2018 Were there "real vacancies" of Inspectors on account of promotion of incumbents to the rank of Superintendents in view of the detailed provisions in the order dated 19.07.2001 for implementation of the Cabinet decision regarding restructuring of the Department of Central Excise and Customs?
Issue No. 3 Do the 382 vacancies in Lucknow Zone mentioned in the letter dated 29.05.2007 pertain to the period prior to 6.12.2002 and which were to be filled up as per the RRs of 1979 ?
Issue No.4 What should be fate of the Inspectors already promoted against the alleged "non-existent" vacancies due to the promotion of 382 Inspectors to the post of Superintendents?
Issue No.5 In view of the subsequent developments, what is the relevance of impugned order dated 24.10.2016 by the CBEC.
9. Analysis.
32C-3/Item-55 OA-1652/2018 with OA-3996/2018 9.1 For better appreciation of the issues, it is worthwhile to revisit the entire gamut of CBEC orders/instruction/ and statutory Rules following (a) the Union Cabinet Decision to restructure the Dept. of Central Excise and Customs, which was communicated vide letter dated 19.07.2001; (b) the A.P. High court Order dated 2.03.2005
(c) the orders dated 6.06.2007 in OA no. 454/2006 and order dated 16.12.2010 in OA no.510/2007 and the Bombay High Court order dated 28.10.2013 in WPC no. 298 /2013; (d) the Impugned orders dated 24.10.2016 and two orders of 2018 and (e) the D. Raghu judgment by the Apex Court.
9.2.0 The Cabinet Secretariat vide its Notification No.28/CM/2001(1) dated 16.07.2001 conveyed the decision of the Union Cabinet approving the proposal of the Department of Revenue regarding restructuring of the Customs and Central Excise Organisation. The Central Board of Excise and Customs (CBEC) vide letter dated 19.07.2001 (Annexure-A5, page 70-75) conveyed to all concerned the details of the restructuring and revised/updated strength of various cadres. The number of posts of Inspectors sanctioned was 18053. 9.2.1 The CBEC vide letter dated 3.08.2001 further substantiated the decision of the Union Cabinet stating and clarifying the benefits to various cadres. The word 33 C-3/Item-55 OA-1652/2018 with OA-3996/2018 "upgradation" crept into the CBEC communications starting from this letter. Paragraph (viii) (Annexure- R-4, pages 35-38 of OA No.3996/2018) of this letter states:
"(viii) Restructured Cadres: As a result of induction of Information Technology, productivity of personnel at different levels will increase substantially. At the same time, manual work processes would be automated through re-training and re-deployment along the lines indicated in Table 10. It may be noted that this Restructuring is a sequel to the reforms process, which has been going on in the Department of Revenue for the last ten years. The restructuring proposal was prepared after comprehensive discussions with the representatives of different Staff Associations and there was a broad consensus on these proposals. In this restructuring exercise, no staff would be retrenched or declared surplus. The abolition of posts will be done by up-gradation of posts into the next higher grade and by not filling the posts in the lower grade. A one-time relaxation has also been obtained for filling all the vacancies by way of promotions in all cadres. It is also clarified that wherever a person is placed in a higher scale consequent to this restructuring, such placement will be deemed to be a promotion for the purposes of the Assured Career Progression Scheme and no new pay scale will be introduced for any of the categories of posts in the department till the next Pay Commission."
Though there were mergers, creation of additional posts and reduction of number of posts in specific cadres, the afore mentioned letter dated 3.08.2001 created a "fiction" of upgradation of posts, apparently when the number of posts in a particular cadre was enhanced accompanying by reduction of the number of posts (not equal number of posts) in the lower/feeder cadre. This is how the confusion regarding upgradation of 382 posts in Lucknow Zone or 449 posts in Mumbai Zone arose.
9.2.2 The CBEC vide its letter dated 5.06.2002
(reproduced in D. Raghu and others Vs. R.
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C-3/Item-55 OA-1652/2018 with OA-3996/2018
Basaveswarudu and others, Civil Appeal Nos.1970-1975 of 2009, in Paragraph 20) communicated the allocation of posts in Group 'A', 'B', 'C', and 'D' amongst various Zones/ Commissionerates and Directorates. For example, the cadre strength of Superintendents and Inspectors in Mumbai Zone was revised to 1455 and 2193 instead of the pre- restructured (as on 18.07.2001) cadre strength of 1006 and 2866 respectively .
9.2.3 The CBEC notified on 29.11.2002 the Central Excise and Land Customs Department Inspectors (Group 'C' posts) Recruitment Rules, 2002 to be effective from 7.12.2002. Similarly, the CBEC notified on 16.01.2003 the Central Excise and Customs Department Senior Tax Assistant (Group 'C' posts) Recruitment Rules, 2003 to be effective from 20.01.2003. The CBEC further notified The Central Excise and Customs Tax Assistant (Group 'C' posts) Recruitment Rules, 2003 to be effective from 5.05.2003. 9.2.4 Prior to the notification of the statutory Rules, the CBEC vide letter dated 23.09.2002 issued instructions to all Cadre Controlling Authorities to promote Inspectors to post of Superintendents against the newly created enhanced number of posts of Superintendents, against clear vacancy thus created/available. The Apex court in D. Raghu judgment (supra) has categorically held (paragraphs 79 to 84) that the restructured cadres became effective 35 C-3/Item-55 OA-1652/2018 with OA-3996/2018 from the date the respective Statutory Rules came into existence.
9.2.5 Prior to 2003 (precisely 07.12.2002 the day Inspector's RRs were amended), there were two separate Cadres in the Central Excise Department viz. (i) Ministerial Cadre and (ii) Data Entry Operator Cadre. Promotion to the grade of Inspector was in accordance with the RRs of 1979 wherein Ministerial cadre was the feeder grade while DEOs were not a feeder grade. As a consequence of cadre restructuring, the posts of Tax Assistant, Data Entry Operator Grade C and Grade-B were merged together and re-designated as Senior Tax Assistant. Further, the posts of UDC, DEO Grade A and LDC were merged and re- designated as Tax Assistant. The posts of Senior Tax Assistant & Tax Assistant became feeder cadres for promotion to the cadre of Inspector under Inspectors' RR notified on 07.12.2002. As a result, discontentment bred in the Ministerial cadre as in the new RRs of Inspectors 2002, in addition to Ministerial cadres, Executive cadres (erstwhile DEOs) became feeder cadres. This led to a number of litigations relating to number of posts available under the jurisdiction of the Mumbai Cadre Control Authority in the grade of Inspectors and Superintendents prior to Cadre Restructuring, availability of addition/deletion posts between the period of Cadre 36 C-3/Item-55 OA-1652/2018 with OA-3996/2018 Restructuring and notifications of amended RRs of Inspectors, effective date of STA and TA posts which were made available with the Cades Restructuring, promotions, seniority etc. The ministerial cadres contending that all the post of Inspectors which have been "upgraded" to Inspectors by the Cadre Restructuring of 2001 are available for them till the post of STA & TA came in being w.e.f the date of notification of amended RRs of Inspectors i.e. 07.12.2002. On the other hand, the Executive cadres contending that they have a right to the post of Inspectors since the date of Cadre Restructuring.
On this issue of applicability of Recruitment Rules of Inspectors for filling the vacancies of pre-Cadre restricting/post Cadre restructuring posts, two WPs were filed in Andhra High Court (i) W.P No.2378 of 2005 filed by S.S.L. Narayan and WP No.45 of 2005 filed by Shri Giridhar Prasad. The Hon'ble A.P. High Court passed a common judgment dated 07.03.2005 wherein it was held as under :
"Writ Petitions are allowed by setting aside the order of the Tribunal. However, it is made clear that promotions to the posts of UDC or old Tax Assistants as the case may be shall be made in accordance with the old rules in respect of vacancies which arose prior to 05.05.2003."
Similar orders were passed by the Hon'ble AP High Court in WP No.7963 of 2004 filed by R. Basaveswarudu [erstwhile DEOs] and others. Vide judgment dated 2.03.2005 the High Court order that:
37
C-3/Item-55 OA-1652/2018 with OA-3996/2018 "For the reasons stated above, we hold that the order of the Tribunal is not sustainable and accordingly set aside. The department is directed to fill up the vacancies in the cadre of Inspectors of Central Excise in respect of the vacancies which arose prior to 7.12.2002 in accordance with the 1979 Rules. If any promotions are held up or kept in abeyance, they shall be given effect forthwith. However, it is made clear that we are not deciding the issue as to how the posts of Inspector should he filled up from the restructured cadre of Senior Tax Assistant in respect of the vacancies that arose after 07.12.2002. Writ petitions are accordingly allowed. No costs."
[In OA 1362/2002 in CAT, Hyderabad the Tribunal vide its order dated 17.02.2004 allowed in part the prayers with the direction that the respondents are directed to consider the cases of the applicant for promotion under one-time relaxation scheme to the post of Inspector of Customs & Central Excise in terms of relevant Rules taking into consideration the Service rendered by them as Data Entry operator, Grade B after giving them opportunity to appear in the departmental examination as provided in Note 2 in the Schedule to the Inspectors' RRs 2002. In case they are successful and are finally selected as Inspectors as per rules, they should be promoted as Inspector as assigned suitable seniority. The judgment of CAT, Hyderabad Bench was challenged in the Andhra Pradesh High Court in Writ Petition No. 7963/2004. The case was decided on 02.03.2005 by the High Court.] 9.2.6 The CBEC vide letter dated 26.09.2005 directed all CCAs to implement the A. P. High court order dated 2.03.2005 in WP No.7963/2004 and order dated 7.03.2005 in WP No.2378/2005. Subsequently, vide letter dated 17.05.2006, the CBEC informed all CCAs that the aforementioned decision of the A.P. High Court dated 2.03.2005 has been challenged through the SLP filed by Shri D. Raghu and others. They further advised (17.05.2006) that the promotions to the cadre of Inspectors in pursuance to the A. P. High Court would be subject to 38 C-3/Item-55 OA-1652/2018 with OA-3996/2018 the outcome of the SLP filed against that order in the Supreme Court.
9.2.7 The CBEC in a series of circulars/memorandums including the three dated 17.05.2006 19.07.2006 and 4.08.2006 to various Cadre Controlling Authorities informed that as per the A.P. High Court orders, the vacancies which were prevailing in various cadres including Inspectors, prior to the restructuring took place on 19.07.2001, were available for promotion as per the 1979 Rules. The CBEC vide letter dated 29.05.2007 addressed to the Lucknow CCA clarified:
"2. As you are aware the Board vide ite letter. F.No.A- 12034/1/2003-Ad.III dated 28.04.2003 had clarified that "VACANCIES which are to be filled by promotion would be the sum of the backlog of all carry forward vacancies (both direct and promotee quota) and all the vacancies which have occurred between 1.4.2001 and 31.12.2002, whether due to cadre restructuring or otherwise." Thereafter for implementing the Hon'ble A.P. High Court Judgment, the Boar vide letter F.No. A-32022/70/2003 dated 19.07.2006 further clarified to all field formations that "the revised sanction strength of Inspectors will be effective from 07.12.2002 i.e. the date from which the re-structured cadre of Inspectors came in to existence". Apparently, vacancies in the grade of Inspectors prior 07.12.2002 will have to be worked out on the basis of pre-revised sanctioned strength of Inspectors.
3. Your interpretation that 382 Inspectors were promoted to the grade Superintendent against regular vacancies vide Estt. Order no. 103/2002 dated 31.10.2002 and an equal number of posts of Inspectors stood abolished/lapsed is not correct. According to the Board's aforementioned clarification, these 382 resultant vacancies will have to be taken into account while working out the vacancies in the grade of Inspectors as on 06.12.2002. In other words, promotions in the grade of Inspectors may be made by taking in to account all the vacancies existing on 06.12.2002 (including 382 vacancies arisen due to promotion of Inspectors to the grade of Superintendent).
4. Keeping in view, the above position, the Board has decided that this Judgment should be implemented immediately. It is therefore, requested that necessary steps 39 C-3/Item-55 OA-1652/2018 with OA-3996/2018 be taken to fill up vacancies in the grade of Inspectors by taking in to account all the vacancies including 382 resultant vacancies which arose owing to promotion of Inspectors to the grade of Superintendent and existing prior to 07.12.2002."
9.2.8 Now the question arises whether the availability of 382 posts in Lucknow CCA as conveyed by the CBEC vide letter dated 29.5.2007 was contrary to the A. P. High Court Order dated 2.03.2005.
Though the letter has not clearly expressed the A.P. High Court Order, and used the words availability due to upgardation of posts of Inspectors to that of Superintendents, in effect it has reiterated the position arising out of A.P. High Court order dated 2.03.2005 that the vacancies of Inspectors prevailing prior to 19.07.2001 were available to be filled as per the 1979 Rules. However, it is not exactly clear whether there were 382 such vacancies of Inspectors available in Lucknow zone, prior to 19.07.2001 or even prior to notification of the RRs for Inspectors on 7.12.2002.
9.2.9 Similar situation as in case of the Lucknow Zone also rose in the Mumbai Zone. In this context, it would be appropriate to delve into the background, issues and decisions in the OA no.454/2006 and OA No.510/2007, which in effect was taken into note vide order dated 28.10.2013 in W.P. No 298/2013.
40C-3/Item-55 OA-1652/2018 with OA-3996/2018 9.2.10 In OA No.454/2006 filed before the Coordinate Bench of this Tribunal at Mumbai, 40 applicants who were working as Tax Assistants/ Stenographers/ UDCs in the Mumbai Zone, claimed that they were eligible for promotion to the post of Inspector since their cadres are feeder cadres for the said post. As per the judgment of the Andhra Pradesh High Court dated 2.03.2005, the vacancies in the cadre of Inspector which had arisen prior to 7.12.2002 would be governed by 1979 Recruitment Rules (RRs). The total number of vacancies available in the cadre of Inspector as on 6.12.2002 were 812 and 270 ministerial officers were eligible for promotion in accordance with the 1979 RRs. In para 12, the Tribunal ordered as follows:
"12. We have heard both the learned counsel and have perused the material available on record. It is not disputed by either party that the number of vacancies which had arisen before should be filled up in accordance with the recruitment roles of 1979. After a judgment of Hon'ble High Court of Andhra Pradesh the Ministry of Finance had issued specific instructions in this regard vide circular dated 26.09.2005. The only dispute relates to the number of vacancies which were available in the cadre of Inspectors before 07.12.2002 the date when new Recruitment Rules came into force. It has been contended from the applicants' side that such number as per the communication dated
10.01.2006 of the Chief Commissioner, Central Excise, Mumbai Zone-1 addressed to the Ministry of Finance was 812 including 168 vacancies for promotees and 644 for direct recruits. It was mentioned in the scheme of restructuring itself issued by the Ministry of Finance vide letter dated 19.07.2001 that no direct recruitment will be made to the various grades in the year 2001-2002 without the approval of the Ministry as the Cabinet has approved a one time relaxation for filling up all vacancies by promotion in all cadres. This was reiterated by the Ministry of Finance in its letter dated 19.07.2006 that vacancies as existed before cadre restructuring i.e. upto 31.12.2002 are to be treated as promotion quota vacancies. Thus, there is no dispute that all vacancies were to be filled up by promotion only."
41C-3/Item-55 OA-1652/2018 with OA-3996/2018 In para 13 of the said order, it has been mentioned that:
"13. We observe that the number of vacancies communicated to the Ministry by Commissionerate of Central Excise, Mumbai was 812. However, in that very letter of the Commissionerate, it is mentioned that the above figure included 481 vacancies which arose on account of promotion of Inspectors to the grade of Superintendent consequent to cadre restructuring."
It has been further held that the post in the cadre of Inspectors which fell vacant as a result of their promotion against the newly created post of Superintendent becoming available by way of cadre restructuring cannot be treated as the number of vacancies which were available before cadre restructuring. In the concluding paragraph, this Tribunal held that:
"19. Thus, as result of the restructuring scheme the number of vacancies of Inspectors are to be filled in by promotion were only 331 since 481 out of 812 posts got upgraded to that of Superintendent in cadre restructuring. Subsequently, vide letter dated 24.11.2006 some more posts were included in the promotion quota. Therefore, the action of respondents in not filling up 449 posts by promotion is in order and does not call for any judicial intervention. In view of the foregoing, we hold that the OA is devoid of merit and the same is accordingly dismissed. No order as to costs."
In other words, the Coordinate Bench at Mumbai in OA No.454/2006 has conclusively held that the vacancies which arose because of promotion of the existing incumbent Inspectors to the rank of Superintendent cannot be held that those vacancies were available prior to 6.12.2002, to be filled up by promotion of the ministerial cadre as per 1979 RRs.
42C-3/Item-55 OA-1652/2018 with OA-3996/2018 9.2.11 Subsequently, 53 applicants who were working as Data Entry Operator (DEO) prior to restructuring of the department, filed OA No.510/2007 in the Coordinate Bench of the Tribunal at Mumbai. This was filed by the erstwhile DEOs as a counter claim of the ministerial cadre employees who claimed that 449 vacancies available on 6.12.2002 would be exclusively filled up by promotion of the ministerial cadre as per 1979 RRs. As this matter has already been adjudicated in OA No.454/2006 (supra) and it was concluded that only 331 vacancies were available for the ministerial cadre to be filled up as per 1979 RRs, the OA No.510/2007 was disposed of in the following manner:
"19. In this connection, it may be noted that despite effecting the restructuring and opening channel of promotion to the applicants to the post of Inspector in the year 2002, under the garb of implementation of the Hon'ble A.P. High Court Judgement, the promotions to the cadre of Inspector are still being effected only from amongst ministerial staff by somehow finding vacancies as on 6.12.2002. By doing so, the entire objective behind the restructuring is being frustrated. After the order dated 6.6.2007, it was not open to the respondent to show that 449 vacancies were available as on 6.12.2002. This action of the Department has resulted in affecting excess promotions against non-existing vacancies and such excess promotions can not be regularized by utilizing the future vacancies arising after cadre restructuring.
20. The OA of the applicant therefore deserves to be allowed by declaring that 499 vacancies of Inspectors resulting due to upgradation to the post of Superintendent can arise only on 7.12.2002 and can be filled only by operating the new Recruitment Rules of 2002. The said 449 vacancies of Inspectors can not be filled up by operating old 1979 Rules. To this extent only the impugned promotion orders dated 18.6.2008 and 28.1.2009 are quashed and set aside and the official respondents are directed to hold review DPC for filling up the said 449 vacancies of inspectors in accordance with 2002 Recruitment Rules by considering eligible candidates in the restructured cadre."43
C-3/Item-55 OA-1652/2018 with OA-3996/2018 Subsequently, a Review Petition No.03/2011 in OA 510/2007 was filed and para 20 of the said order dated 16.12.2010 was modified in the following manner:
"6. In the facts and circumstances of the case, paragraph 20 in the order under review shall stand substituted by the following paragraph:
"20. Original Application is allowed and impugned orders of promotion dated November 8, 2007, June 13, 2008 and January 28, 2009 are quashed and set aside."
Thomas Mony and others, being aggrieved, filed Civil Writ Petition No.4262/2013 in the High Court of Judicature at Bombay. The Union of India also filed Writ Petition No.298/2013 in the same High Court. Both these Writ Petitions were tagged together. On 28.10.2013, the petitioners sought time to take instructions. On 16.01.2014, the following orders were passed:
"2. The learned counsel appearing for the petitioners, on instructions, seeks to withdraw the present petition with liberty to file Review Petition. The petition is accordingly disposed of as withdrawn and all points kept open."
In pursuance with the decision to withdraw Writ Petition No.298/2013, there was no subsequent initiation by the Union of India to move any judicial forum to nullify the order dated 6.06.2007 in OA No.454/2006 (supra), which was further reaffirmed in OA No.510/2007 vide order dated 16.12.2010.
44C-3/Item-55 OA-1652/2018 with OA-3996/2018 9.2.12 The Hon'ble Apex Court in D. Raghu and others (supra) gave the concluding judgment in respect of the decisions dated 2.03.2005 by the Andhra Pradesh High Court in W.P. No.7963/2004 and other bunch of writ petitions as well as common judgment dated 7.03.2005 in W.P. No.2378 of 2005 filed by S.S.L. Narayan and W.P. No.45 of 2005 filed by Shri C. Giridhar Prasad. Following are some of the salient features of the judgment of the Hon'ble Apex Court in D. Raghu (supra) :
"119. (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 14.11.2002 show that promotion to the post of Inspector was to be effected based on the new recruitment rules.
xxxx xxxx xxxx
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 operation of the 'Inspector Rules' and the Senior Tax Assistant Rules.
xxxx xxxx xxxx
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.
xxxx xxxx xxxx
45
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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. We bear in mind the principle laid down in Taherakhatoon (D) By Lrs. (supra) 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."
120. Civil Appeals Nos. 1970-1975 of 2009 are disposed of as follows:
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, we direct that the promotions shall be notional where promotions have already been effected, however, entitling the parties to seniority and pensionary benefits. The above exercise shall be completed at the earliest."
9.2.13 Ten applicants filed OA No.414/2016 before the Jaipur Bench of the Central Administrative Tribunal seeking the following reliefs:
"i) That this Hon'ble Tribunal will be pleased to call for the records and proceedings leads to the issue of upgradation of Inspector, Central Excise to the post of Superintendent and after going through the illegality or otherwise, this Hon'ble Tribunal will be pleased to quash and set aside the directions contained in the impugned letter dated 12.05.2016.
ii) That this Hon'ble Tribunal will be pleased to direct the official respondents to issue Commissionerate-
wise details of the actual number of Inspector, Central Excise posts which stood upgraded to the 46 C-3/Item-55 OA-1652/2018 with OA-3996/2018 post of Superintendent during the period from- 01.01.1999 till 07.12,2002, whether due to cadre restructuring or otherwise.
iii) That this Hon'ble Tribunal will be pleased to direct the official respondents to issue Commissionerate- wise details of the actual number of Superintendent, Central Excise posts which stood created during the period from 01.01.1999 till 07.12,2002, whether due to cadre restructuring or otherwise.
iv) That pending the hearing and final disposal of this application, respondents 1 to 4 be restrained by an order and Injunction issued from this Hon'ble Tribunal from proceeding with taking any action on the impugned letter dated 12.05.2016.
v) That an-interim order in terms of prayer clause (d) be granted in favour of the applicants.
vi) That the cost of this application may be awarded in favour of the applicants.
vii) That such other and further relief as are expedient be granted in favour of the applicants.
viii) That any other relief or direction which this honourable tribunal deems fit in the facts and circumstances of the case may also be passed in favour of the applicant."
The Coordinate Bench at Jaipur vide order dated 26.09.2022 has passed the following order:
"9. We have gone through the pleadings and heard the arguments. Both are summarized in the previous paragraphs. It seems that the official respondents have not yet clearly made up their mind about what they should do with respect to the applicants, after the decision of the Hon'ble Supreme Court in the case of D.Raghu (supra) (brought on record as Annexure MAR-1). There can be no denying that the verdict of the Hon'ble Supreme Court is binding on all. The verdict does mention, citing the case of Taherakhatoon (D) by Lrs. vs. Salambin Mohammad decided by Hon'ble Supreme Court on 25.02.1999), not disturbing officers promoted following the Hon'ble A.P. HC verdict (Refer Para 119 (19,20 & 21 of this verdict), which is also referred to in the letter dated 01.06.2022, filed by the respondents along with MA No.299/2022). This should, prima-facie, include the applicants. The argument of the private respondent that it does not, is based on their interpretation of the Hon'ble Supreme Court order and the orders of the Hon'ble 47 C-3/Item-55 OA-1652/2018 with OA-3996/2018 Mumbai and A.P. High Courts. We do not think that the private respondent, or even us, are competent to interpret the decision of the Hon'ble Supreme Court in any which way, at the present stage. The fact that the official respondents have prayed for dismissing this OA in the light of the Hon'ble Supreme Court's order, can be taken as an indication of their not intending to proceed further with the impugned orders. It can also be taken as a ruse (as suspected and argued by the learned counsel for the applicants) to have the case dismissed, get the stay vacated and to proceed further with review DPCs and applicants) to have the case dismissed, get the stay vacated and to proceed further with review DPCs and reversions as proposed in the impugned order (Annexure A/1). We neither want to guess the intentions of the official respondents, nor, as stated earlier, to interpret the orders of the Hon'ble Supreme Court in any particular way, without knowing what action is being taken by the respondents and without anyone challenging that action before us. Suffice it is to say that we find the orders of the Hon'ble Supreme Court does apparently covers the matter raised in the OA before us. This fact is admitted by both the learned counsels for the applicants and the official respondents. The order of the Hon'ble Supreme Court also, prima-facie, protects the applicants who were apparently promoted pursuant to the decision of the Hon'ble A.P. HC. Any decision on our part, pre-judging what would be the actions of the official respondents with respect to the applicants following the decision of the Hon'ble Supreme Court, is clearly pre-mature and therefore not warranted at this stage. The impugned orders (at Annexure A/1) were issued before the decision of the Hon'ble Supreme Court. In our considered opinion, these would certainly require a re-look by the respondents in the light of the decision of the Hon'ble Supreme Court. We, therefore direct the respondents to take a fresh decision in matter, in the light of the orders of the Hon'ble Supreme Court in D. Raghu's case (supra).
10. We are, thus, disposing this OA with a direction to the official respondents to take appropriate fresh decision, in the light of the decision of the Hon'ble Supreme Court in D. Raghu's case (supra). Needless to mention, it shall be open for any party to raise the matter at an appropriate forum, if such fresh decision violates any law of the land (including the aforementioned decision of the Hon'ble Supreme Court). No costs."
It may also be mentioned that the Central Board of Indirect Taxes and Customs vide its circular dated 1.06.2022 has directed all the cadre controlling authorities under its 48 C-3/Item-55 OA-1652/2018 with OA-3996/2018 jurisdiction to implement the decision of the Hon'ble Apex Court in D. Raghu (supra) case.
10. Conclusion 10.1 The issue in both these OAs revolves around the communication dated 24.10.2016. The applicants in OA No.3996/2018 are seeking setting aside the order dated 24.10.2016 with a direction to the respondents not to undertake any review DPC and further hold promotions for them on the basis of all previous promotions of Inspectors assuming that there was availability of 382 posts in the Lucknow Division because of upgradation of equal number of posts to the rank of Superintendent. On the other hand, the applicants in OA No.1652/2018 are seeking direction to the respondents to revise the inter-se seniority of Excise and Customs Inspectors by keeping in view the availability of 382 posts of Inspectors.
10.2 As we have already discussed, the availability and upgradation of the posts of Inspector to that of Superintendent has been discussed in OA No. 454/2006 (supra) as well as OA No.510/2007 (supra) filed in the Coordinate Bench at Mumbai and the said orders have attained finality because the Writ Petition No.298/2013 challenging the decision in OA No.510/2007 was withdrawn. Though all the issues were kept open, no 49 C-3/Item-55 OA-1652/2018 with OA-3996/2018 further action to reopen the case in judicial forum was initiated by the official respondent i.e. CBEC. However, all those judgments have arisen due to the A.P. High Court orders dated 2.03.2005 and 7.03.2005. As the Hon'ble Apex Court has given its conclusive and definite finding in respect of the above mentioned orders of the A.P. High Court, this so called finality of the orders by the Coordinate Bench of this Tribunal at Mumbai in OA Nos.454/2006 and 510/2007 has to be subsumed and to be read with the final judgment of the Apex Court in D. Raghu (supra) case. Similarly, the position regarding availability of 382 posts of Inspector in the Lucknow Zone which is the issue in the set of two present OAs, needs to be looked afresh in view of the Apex Court judgment in D. Raghu (supra) case because of the subsequent developments and judicial pronouncements which have come after issuance of the communication dated 24.10.2016 by the CBEC. No purpose will be served by continuing any exercise in pursuance with this communication. The matter regarding availability of posts till 6.12.2002 and entitlement of various feeding cadres for promotion to the rank of Inspector and subsequent promotions for vacancies which arose after promulgation of the RRs for Inspectors on 7.12.2002 in pursuance with the restructuring of the department which was communicated on 19.07.2001, has to be considered afresh in the light of the judgment of the Apex Court in D. Raghu (supra) case. 50 C-3/Item-55 OA-1652/2018 with OA-3996/2018 Even the communication dated 1.06.2022 for implementing the order of the Apex Court in D. Raghu (supra) case needs to be looked afresh, taking into consideration all the relevant issues which have been dealt with in the aforementioned judgment of the Apex Court. 10.3 Findings 10.3.1 Issue No.1 In view of the above analysis, there was no "real upgradation" but creation/abolition/merger of various cadres and change in the number of posts in various cadres as per the restructuring exercise notified vide letter dated 19.07.2001.
This is how we resolve issue No.1.
10.3.2 Issue No.2 When we read communication dated 3.08.2001 read with the communication dated 19.07.2001, there is clarity that when the incumbent Inspectors are/were promoted to the rank of Superintendents after the RRs for the Inspectors came into effect on 7.12.2002, the resultant vacancies do/did not remain intact. To the extent the number of posts get abolished would get adjusted against such "vacancies". If this exercise has been completed in each cadre controlling authority, then the 'real vacancies' would 51 C-3/Item-55 OA-1652/2018 with OA-3996/2018 be known. Hence, issue No.2 is resolved in this manner. Thus onus is on Respondent No.2 to ascertain whether such exercise was conducted in each CCA; if not then propriety warrants such exercise should be done afresh to know the 'ad hoc' or "regular" promotion against such vacancies.
10.3.3 Issue No.3 From the pleadings in both the OAs and the submissions by the respective counsels, there is no clarity regarding the vacancies of 382 Inspectors in Lucknow Zone as to which period these vacancies pertain to. If these vacancies pertain to the period prior to 7.12.2002, then these are to be dealt as per the currency of the judgment of the A.P. High read with the judgment of the Apex Court in D. Raghu (supra) case.
10.3.4 Issue No.4 The Apex Court in D. Raghu (supra) case has recognized the problem of promotions already taken place in pursuance to the judgment of the A.P. High Court in W.P. No.7963/2004 as well as common judgment in W.P. No.2378 of 2005 and W.P. No.45 of 2005. The opening sentence of para 97 in D. Raghu (supra) says that "The problem, however, arises as what is to be done qua vacancies of Inspector which were purportedly filled up as 52 C-3/Item-55 OA-1652/2018 with OA-3996/2018 on 20.01.2003 pursuant to notice dated 5.11.2002 which was impugned in O.A. 1362/2002." In paragraph 106, it has been stated "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 to interfere. We bear in mind the principles laid down by this Court in Taherakhatoon (D) By Lrs. Vs. Salambin Mohammad, (1999) 2 SCC 635 and would not disturb the direction to fill-up the vacancies which arose prior to 07.12.2002, as directed." In view of the aforementioned finding by the Apex Court, the promotions already taken place in pursuance with the A.P. High Court judgments, referred to above, have to be considered accordingly.
Mr. Shyamal Narain, learned counsel has also in his submissions dated 29.07.2024, citing the Apex Court judgment in Ram Ujare Vs. Union of India, Civil Appeal No. 5714/1998, Kerala High Court judgment in S. Aji Vs. Nazarudeen and others and another Apex Court judgment in Shri Shekhar Ghosh Vs. Union of India and anr., Appeal (Civil) No.4635/2006, states that the applicants in OA No.3996/2018 could not be put to disadvantage by 53 C-3/Item-55 OA-1652/2018 with OA-3996/2018 implementing the impugned order dated 24.10.2016 by conducting review DPC to revert them back to their previous cadres. The applicants have been allowed to continue in terms of orders dated 17.05.2006, 19.07.2006, 29.05.2007 and 3.09.2007. They have been permitted to continue in the post of Inspector notionally from 2002 and actually from 2007 in the light of the decision of the A.P. High Court. Citing the judgment of the Hon'ble Apex Court in Shri Shekhar Ghosh (supra), he has pleaded that "if a mistake is to be rectified, the same should be done as expeditiously as possible." Rectification of a mistake, however, may, in a given situation, requires compliance of the principles of natural justice.
It may be mentioned here that while reversing the decision in Union of India Vs. N.R. Parmar in Civil Appeal No.7514-7515/2005 dated 27.11.2012, the Hon'ble Apex Court in K. Meghachandra Singh Vs. Ningam Siro and ors. in Civil Appeal No.8833-8835/2019 decided on 19.11.2019 has held that:
"Accordingly, the decision in N.R. Parmar is overruled. However, it is made clear that this decision will not affect the inter-se seniority already based on N.R. Parmar and the same is protected."
The applicants in OA No.1652/2018, while seeking protection, have cited the judgment in N.R. Parmar (supra) in paragraph 4.12 of the OA.
54C-3/Item-55 OA-1652/2018 with OA-3996/2018 All these decisions have to be kept in mind while taking appropriate action in pursuance of the judgment of the Apex Court in D. Raghu (supra).
10.3.5 Issue No.5 As significant developments have taken place subsequent to issuance of the communication dated 24.10.2016 and subsequent communications dated 3.04.2018 and 18.04.2018, and further more the communication dated 1.06.2022 by CBEC directing all Cadre Controlling Authorities to implement the Apex Court judgment in D. Raghu (supra) case, there is need for withdrawal of the aforementioned three communications so that these do not create confusion. Moreover, these standalone communications, without giving background, reference to court judgments, and linking with previous communications create more confusion and problem than solving long standing issues.
11. In view of the above, the following orders are passed:
i) The communication dated 24.10.2016 issued by the CBEC is quashed;
ii) The impugned orders dated 3.04.2018 and 18.04.2018 issued by the CBEC to all the cadre controlling authorities for conducting DPCs are hereby quashed;55
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ii) The respondent no.2 i.e. the Chairman, CBEC, Ministry of Finance, Govt. of India is directed to constitute a Task Force comprising senior officials of the CBEC, representatives of the DoP&T and Ministry of Legal Affairs (duly being communicated by these Departments/ Ministries) to draft comprehensive guidelines delineating all the issues which have arisen from the series of litigations and the judgment in D. Raghu (supra) case by the Hon'ble Apex Court. The communication dated 1.06.2022 needs to be relooked in that context;
iii) The respondent no.2 i.e. the Chairman, CBEC shall constitute the aforementioned Task Force within a period of 15 days from the date of receipt of certified copy of this order. The Task Force shall give its report and draft guidelines to be issued to all CCAs within a period of 12 weeks from the date of its constitution; and
iv) The respondent no.2 i.e. the Chairman, CBEC shall consider the draft guidelines and after taking appropriate decision issue final guidelines to all the cadre controlling authorities within a period of 4 weeks from the date of receipt of the report of the Task Force.
12. The OAs are disposed of in the above manner. All pending MAs are also disposed of accordingly. No order as to costs.
(Dr. Chhabilendra Roul) (Pratima K. Gupta)
Member (A) Member (J)
/dkm/