Central Administrative Tribunal - Hyderabad
Rakesh Kumar Singh vs Central Excise & Customs on 24 July, 2023
OA.No.020/020/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH, HYDERABAD
O.A No.020/020/2020
ORDER RESERVED ON 01.03.2023
ORDER PRONOUNCED ON : 24.07.2023
CORAM:
HON'BLE MR. SUDHI RANJAN MISHRA, JUDICIAL MEMBER
HON'BLE MR. B.ANAND, ADMINISTRATIVE MEMBER
Rakesh Kumar Singh (Group-B)
S/o Jawahar Prasad Singh
Aged 41 years
Occ: Inspector (Preventive Officer)
Customs House
Visakhapatnam. ...Applicant
(By Mr.K.Sudhaker Reddy, Advocate)
Vs.
1. The Union of India, Ministry of Finance
Department of Revenue, North Block
New Delhi, Represented by its Secretary.
2. Central Board of Indirect Taxes and Customs
North Block, New Delhi, Rep. by its Chairman.
3. The Principal Commissioner of Customs
(Cadre Controlling Authority)
Customs House, Port Area
Visakhapatnam - 530035.
4. The Chief Commissioner of
Central Tax & Customs
GST Bhavan, Port Area
Visakhapatnam - 530035.
5. Shri Chet Ram
Superintendent (Group-B Gazetted)
Aged 42 years, Custom House
Port Area, Visakhapatnam - 530035.
6. Shri Avinash Chandra Thethwar
Superintendent (Group-B Gazetted)
Aged 42 years, Custom House
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OA.No.020/020/2020
Port Area, Visakhapatnam - 530035.
7. Shri Ritesh Kumar Sinha
Superintendent (Group-B Gazetted)
Aged 37 years, Custom House
Port Area, Visakhapatnam - 530035.
8. Shri Ravinder Dimri
Superintendent (Group-B Gazetted)
Aged 41 years, Custom House
Port Area, Visakhapatnam - 530035.
....Respondents
(By Advocate Mr.B.Gayatri Varma, Sr. CGSC and Mr.K.Phani Raj for Private
Respondents 5 to 8)
ORDER
PER HON'BLE MR. B.ANAND, ADMINISTRATIVE MEMBER This OA.No.20/2020 has been filed under Section 19 of the Administrative Tribunals Act 1985, seeking the following main relief:
"To declare the action of the Respondents in not considering the applicant as eligible candidate on the basis of qualifying/eligibility service at par with his juniors under DPC conducted for promotion to the cadre of Supdt. (Preventive) and effecting promotion vide F.No.S2/01/2014- Estt.(P.II), dated 26.12.2018 as illegal, arbitrary and violative of the Articles 14 and 21 of the Constitution as the applicant was not issued offer of appointment in time at par with his batchmates i.e., equal opportunity was denied; and Consequently declare appointment of the applicant in the post of Inspector (Preventive Officer) notionally from that date on which his immediate junior joined in the department in the feeder grade of Inspector (Preventive Officer) and whose promotion was effected vide promotion order F.No.S2/01/2014-Estt.(P.II), dated 26.12.2018, and accordingly to conduct Review DPC and effect promotion of the applicant from 01.01.2019; and To direct the respondents to consider for counting of the preview service of the applicant in the post of Inspector (Central Excise) under Customs Preventive Commissionerate, Shillong under the same department of Customs under same CBIC/CBEC at par with the service in the post of P a g e | 2 of 19 OA.No.020/020/2020 Inspector (Preventive Officer) under relaxation clause 6 and count the eligibility/qualifying service of 8 years since his joining as Inspector (Central excise) on 17.04.2006 with all attendant and consequential benefits including increments etc., and pass such order or orders as deemed fit and proper in the facts and circumstances of the case."
2. The brief facts of the case are that the Applicant was selected as Inspector (Preventive Officer) Group 'B' (Non-Gaz.) through Short Service Commission Combined Graduate Level Examination (SSC CGLE) 2008 and allocated Customs House, Visakhapatnam. He was issued a letter for physical and medical tests along with other candidates and he appeared for the test along with his batchmates selected through the same examination and allocated the same office/cadre for their appointment. In the CGLE-2008, the applicant secured a rank of SLE/08/00146 and before joining the post of Inspector (Preventive Officer) under Custom House, Visakhapatnam, he was already working in the grade of Inspector (Central Excise) under Shillong Customs (Preventive) Commissionerate under the same organization/department under CBEC-Central Board of Excise and Customs (CBEC), now renamed as Central Board of Indirect Taxes and Customs (CBIC).
3. The applicant has submitted that due to delay in completion of administrative procedures like receiving character and antecedent verification report, issuing of an offer of appointment to him for joining in the post of Inspector (Preventive Officer) was substantially delayed and was issued only on 17.02.2011, vide memorandum F.No.S2/02/2010-Estt.,. As, at that point of time, one of his family members of the applicant was having health issues, and P a g e | 3 of 19 OA.No.020/020/2020 there was an issue regarding receipt of service book from his earlier department i.e., O/o the Divisional Railway Manager, Bhusawal Division, Central Railway, Bhusawal, he sought extension of 3 months for joining in the new post, vide his letter dated 25.02.2011. The joining time was extended upto 01.06.2011 by the competent authority, i.e., Customs House, and the same was communicated to the applicant vide letter dated 10.03.2011. Vide letter dated 24.05.2011, the applicant further requested for further extension of 3 months, which was granted by the competent authority upto 31.07.2011, vide letter F.No.S2/2/2010-Estt., dated 22.06.2011. The applicant joined in the post of Inspector (Preventive Officer) under Custom House, Visakhapatnam, on 27.07.2011. It is to be noted that the extension for joining time was granted by the competent authority to an extent where there was no loss of seniority as per rules.
4. The applicant has further submitted that by the date he could join in the present post of Inspector (Preventive Officer), some other selected candidates, who were having lower rank in the CGLE-2008, but were issued letter of appointment earlier in December 2010, could join in the department on or before 31.12.2010 (i.e., before 1st January, the date of calendar year on which eligibility criteria for promotion to the higher grade is determined). The draft seniority list in the cadre of Inspector (Preventive Officer) was circulated on 25.09.2018, calling for objections and the same attained finality as no objections were received. The applicant was shown at Serial No.16 in the said list and the juniors were shown from Serial No.17 onwards.
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5. The applicant has further submitted that the DPC was constituted for promotion to the cadre of Superintendent (Preventive) in December 2018, and pursuant to the DPC, 8 persons were promoted vide Estt. Order No.38/2018, dated 26.12.2018. Further, the persons at Serial Nos.6 to 8 reflected in the promotion order were juniors to the applicant in the seniority list mentioned above. One more person, who is also junior to the applicant and whose name is found at Serial No.21 in the seniority list, was also promoted due to refusal of promotion by a person at Serial No.1 of Establishment Promotion Order No.38/2018, dated 26.12.2018. Thus, 4 persons, who were junior to the applicant in the seniority list dated 25.09.2018, were promoted without considering the applicant.
6. The applicant has contended that as per the DPC minutes received from the department, the Recruitment Rules of Superintendent (Preventive) mandates 8 years of regular service in the feeder category of Inspector (Preventive Officer) and some of the candidates, who were short of 8 years of qualifying/eligibility service as on the crucial date of determination of eligibility criteria i.e., 01.01.2019, were left out from the DPC's consideration zone. The applicant further contended that he is admittedly senior to some of the promoted persons, but his case was not considered due to the fact that he could not complete the qualifying/eligibility service of 8 years in the post of Inspector (Preventive Officer), as reckoned on 01.01.2019, mandatorily required for consideration for promotion to the higher grade i.e., Superintendent (Preventive).
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7. The applicant has further submitted that there was a delay in issuance of offer of appointment by the department and hence the blame for not fulfilling the qualifying service of 8 years (or short of service due to late joining), cannot be attributed to the candidate.
8. The applicant has placed reliance on the Order of the Hon'ble High Court of New Delhi in W.P.(C)7423/2013, dated 04.08.2014, in the case of Govt. of NCT of Delhi v Rakesh Beniwal, wherein the Hon'ble High Court in Para 26, has held that "the delay in appointment and the consequential denial of benefits is the direct corollary of the inaction of the petitioners". Further in Para 27, it was observed that "the circumstances surrounding the present matter reflect a casual and indifferent attitude on part of the petitioners, which borders on being callous. The respondents have had to, in the interregnum, not only go through the ignominy of working under their juniors, but also, despite admittedly being senior to them, still continue to draw lesser pay".
9. The applicant has further submitted that in the above case, reliance was made on the judgment of the Hon'ble Supreme Court in the case of Pilla Sitaram Patrudu & Others v. Union of India & Others (JT 1996 (4) 731/1996 SCALE (4) 192), wherein it was held that "the applicants should be considered for promotion by notionally counting their service from the date their juniors joined rather than counting it from the date on which they actually joined themselves". Further, in the case of Union of India v. K.B. Rajoria, (2000) 3 SCC 562), the Hon'ble Supreme Court has clearly made "a distinction between regular service and actual service". Therefore, the applicant has contended that P a g e | 6 of 19 OA.No.020/020/2020 while he may not possesses the actual service on account of his joining late, his regular service should be counted from the date his junior had joined.
10. The applicant has submitted that as the delay was on the part of the Department/Office and offer of appointment could not be issued well before 31.12.2010, the applicant cannot be expected to join the department even before issuance of offer of appointment (which was dated 17.02.2011 only), and could not have joined on or prior to 31.12.2010, completion of qualifying/eligibility service on crucial date of determination of eligibility criteria i.e., on 01.01.2019 by the applicant is no way possible. The loss or disadvantage cannot be caused to the candidates for the mistakes of the department and hence requested to condone the period resulting in shortage of qualifying/eligibility service for promotion to the higher grade.
11. The applicant has further submitted that prior to his joining in the post of Inspector (Preventive Officer), the applicant was working in the grade of Inspector (Central Excise) under Customs Commissionerate, Shillong under CCA of Customs, Central Excise and Service Tax Zone, Shillong, and has rendered his whole service from 17.04.2006 to 22.07.2011 in his previous office in the same capacity of Inspector under the same Board/Department of CBEC/CBIC.
12. The applicant has further submitted that as per the cadre structure of Central Excise Zones, which comprise of 3 types of formations i.e., (i) Central Excise, (ii) Customs & (iii) Service Tax (now GST and Customs), Inspector P a g e | 7 of 19 OA.No.020/020/2020 (Central Excise) performs duties in all three formations//Commissionerates as per rotational policy of the Zones. But, the Inspector (Preventive Officer) and Inspector (Examiners) who were appointed under the cadres of exclusive 6 Customs Zones/Commissionerates, perform their duty only under Customs formations. As the service rendered by the applicant in his previous office of Customs Commissionerate, Shillong in the previous post of Inspector, Central Excise was nothing but in the exactly equal capacity of Inspector (Preventive Officer) and his past service under the same department of Customs under the same designation/capacity of Inspector though in different Commissionerates, but under the same CBEC/CBIC cannot be ignored for the purpose of counting of qualifying/eligibility service in the feeder grade for promotion to the next higher grade.
13. The applicant has also relied on Para 3.12.2 of DOP&T OM No.AB.14017/48/2010-Estt.(RR), dated 31.12.2010, which reads as under:
"the qualifiying service for promotion from one grade to another is necessary so that there is no premature promotion or undue jump in pay and also to ensure that the officer has sufficient opportunity to demonstrate his competence/potential for holding the higher post.''
14. The applicant has submitted that he has performed his duties under Shillong Customs Commissionerate under the same Customs department under the same Board of CBEC/CBIC in the grade of Inspector (Central Excise) the comparable capacity as of Inspector (Preventive Officer) and had more than sufficient or required opportunity to demonstrate his competence/potential for P a g e | 8 of 19 OA.No.020/020/2020 holding the higher post. Even after working for more than 12 years of service in the same grade of Inspector under the same Customs Department under the same CBEC/CBIC, declaring the applicant short of qualifying/eligibility service for promotion to the higher grade is nothing but an extreme mental agony to the applicant.
15. The applicant therefore contended that the action of the respondents in issuing appointment order to him after 31.12.2010 and thereby depriving him from his next promotion to the higher grade on the pretext of shortage of eligibility/qualifying service i.e., not completing qualifying/eligibility service of 8 years in the feeder grade on the crucial date of determination of eligibility i.e., 01.01.2019 and non-consideration of the name of the applicant in promotion order vide File No.S2/01/2014-Estt. (P.II), dated 26.12.2018, is arbitrary, illegal and discriminatory. Hence, the OA.
16. The official respondents 3 and 4 have filed a reply statement. They have submitted that the applicant was allocated to Custom House, Visakhapatnam for appointment as Inspector (Preventive Officer) after being selected through Staff Selection Commission Combined Graduate Level Examination (SS-CGLE) 2008. The dossier of the applicant was received in the office of the 3rd respondent on 19.10.2010. The office of the 3rd respondent issued a memorandum calling the selected officers for medical test and physical test on 22.10.2010 and the same was conducted on 9/10.11.2010. Subsequently, letter dated 15.11.2010 followed by the reminder dated 26.11.2010 was issued to the previous employer of the applicant calling for character and antecedent P a g e | 9 of 19 OA.No.020/020/2020 verification report in respect of the applicant and the same was received on 24.01.2011. The applicant was issued appointment letter F.No.S2/02/2010-Estt. (P23), dated 17.02.2011 with a direction to report to duty not later than 08.03.2011. As admitted by the applicant, he sought extension of time for 3 months for joining for his own reasons vide letter dated 25.02.2011 and the same was accepted vide letter dated 10.03.2011 till 01.06.2011. The applicant once again sought an extension vide letter dated 24.05.2011 and it was again accepted vide letter dated 22.06.2011 till 31.07.2011. The applicant after tendering technical resignation was relieved from Shillong Zone on 21.07.2011 and joined in the office of the 3rd respondent at Visakhapatnam on 27.07.2011. Subsequently, the applicant opted for repatriation to his previous post i.e., Inspector of Central Excise under Customs Commissionerate, Shillong Zone being on extended lien and was relieved from 3rd respondents' office on 15.07.2014. Again, at the specific request of the applicant and with the approval of the competent authorities of Shillong Zone and Visakhapatnam zone of Customs Commissionerates, the applicant was reverted to the 3rd respondent's office and joined the 3rd respondent's office on 13.10.2014 in the post of Inspector (Preventive Officer) and since then he is continuing in the said post.
17. The respondents have further submitted that the next promotional post in the promotional hierarchy of the Inspector (Preventive Officer) is Superintendent of Customs (Preventive). The Recruitment Rules of Superintendent of Customs (Preventive) were notified vide GSR No.489 dated 08.06.1983 as per which the said post was to be filled with Inspectors (Preventive Officer) with 8 years of regular service in the grade. The statutory P a g e | 10 of 19 OA.No.020/020/2020 Recruitment Rules of Superintendent (Preventive) do not provide for Inspector (Central Excise) as feeder cadre nor there exists any provision for consideration of prior service rendered before technical resignation or in any other cadre within the Central Board of Indirect Taxes and Customs like Central Excise or any other cadre under Government of India for the purpose of consideration to the post of Superintendent of Customs (Preventive). The said Recruitment Rules of 1983 were not carrying the provisions of the Junior-Senior Clause as advised in the DOPT OM dated 25.03.1996. However, subsequently, amendment to the said Recruitment Rules was notified on 10.06.2019, wherein the provisions of the junior-senior clause were incorporated. Again in supersession of the said amendment dated 10.06.2019, new Recruitment Rules of Superintendent of Customs (Preventive) were notified vide GSR No.340 dated 13.11.2019.
18. The respondents have further submitted that the DPCs for promotion to the grade of Superintendent (Preventive) were conducted by the office of the 3rd respondent on 26.06.2018 and 30.11.2018, strictly in accordance with the provisions of the Recruitment Rules of Superintendent of Customs (Preventive), dated 08.06.1983 in force and as per the directions of the CBIC. In the DPC dated 30.11.2018, a total number of 10 (08 in regular panel and 02 in extended panel) candidates who have completed the requisite qualifying service of 08 years, as on the crucial date i.e., 01.01.2019 in the feeder cadre of Inspector (Preventive) were empanelled for promotion, irrespective of their order of merit in the seniority list. Accordingly, promotion order to the grade of Superintendent of Customs (Preventive) dated 26.12.2018 was issued for 08 P a g e | 11 of 19 OA.No.020/020/2020 officers. Since the applicant herein had not completed the qualifying service of 08 years in the feeder cadre of Inspector (Preventive) as prescribed in the Recruitment Rules of Superintendent (Preventive), he was not considered for promotion as the provisions of the junior-senior clause were not incorporated in the Recruitment Rules of 1983. Being aggrieved by the same, the applicant herein filed the instant OA.
19. The respondents have denied the allegation of the applicant that his appointment order was substantially delayed because of delay in completing the administrative procedures. The recruitment/appointment process involves various pre-appointment procedures to be completed starting from the allocation of zones and till issuance of appointment order viz., conducting physical tests, medical examination, verification of character and antecedents, verification of certificates of educational qualifications/caste etc.,. The time consumed in processing the requisite pre-appointment procedure cannot be termed as delay.
20. The respondents have submitted that the dossier of the applicant along with 38 other candidates for appointment to the post of Inspector (Preventive Officer) was forwarded to the office of the 3rd respondent, vide Board's letter dated 29.09.2010. During the entire appointment process, all possible efforts were made to appoint the selected candidates as soon as possible by completing all the pre-appointment procedures in a time bound manner. To avoid any undue delay, appointment orders were issued to the candidates, soon after the receipt of character and antecedent verification reports from the concerned P a g e | 12 of 19 OA.No.020/020/2020 authorities, without waiting for issuing appointment letter to all in one go. As a result, the candidates whose character verification reports were received on an earlier date, joined the office of the 3rd respondent earlier and vice versa.
21. The respondents have further submitted that as far as seniority list is concerned, it is a settled principle that the relative seniority of all direct recruits in a particular cadre is assigned in accordance with the order of merit in the recruitment examination (i.e., SSC ranking) and not as per the date of joining, except in special circumstances. As such, the position of the applicant in the seniority list was placed rightly in accordance with the order of merit in the SSC Exam, 2008.
22. The respondents have further submitted that at every stage, it was ensured to complete the prescribed procedure at the earliest to ensure the earliest joining of the applicants. Appointment orders were issued to the candidates as and when the character and antecedents were verified. Despite the issuance of appointment letter dated 17.02.2011 with a direction to report to duty not later than 08.03.2011, the applicant sought extension of joining time by three months each on two occasions to suit his own personal requirements.
23. The respondents have further submitted that the Recruitment Rules for the post of Superintendent (Preventive) were notified vide GSR No.489, dated 08.06.1983, and the same were operative till 09.06.2019. According to the said Rules, "Preventive Officer (Ordinary Grade) with 08 years regular service in the grade including the service, if any, rendered in the grade of Preventive Officer P a g e | 13 of 19 OA.No.020/020/2020 (Senior Grade) are eligible for promotion to the grade of Superintendent (Preventive)". The statutory Recruitment rules of Superintendent (Preventive) do not provide for Inspector (Central Excise) as a feeder cadre nor there exists any provision for consideration of prior service rendered before technical resignation or in any other cadre within the Central Board of Indirect Taxes and Customs like Central Excise or any other cadre under Government of India for the purpose of consideration to the post of Superintendent of Custom (Preventive). Accordingly, DPCs for promotion to the grade of Superintendent (Preventive) were conducted in office of 3rd respondent on 30.12.2018 strictly in accordance with the provisions of the Recruitment Rules of Superintendent (Preventive) in force and as directed by the Board, the officers who have completed the requisite qualifying service of 08 years as on the crucial date ie., 01.01.2019 were empanelled for promotion, irrespective of their order of merit in the seniority list following the provisions of the Recruitment Rules in letter and spirit. For the purpose of calculating the eligibility service in a feeder cadre, date of joining is considered. Since the applicant herein had not completed the qualifying service of 08 years as prescribed in the Recruitment Rules of Superintendent (Preventive), he was not considered for promotion.
24. The respondents have, therefore, prayed this Tribunal to reject the OA filed by the applicant as not maintainable.
25. The learned counsel for the unofficial respondents 5 to 8 filed written arguments stating that they adopt the submissions made by the official respondents in their reply statement.
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26. Heard Mr.K.Sudhaker Reddy, learned counsel for the Applicant and Mrs.B.Gayatri Varma, learned Senior Central Govt. Standing Counsel for the official respondents and Mr.K.Phani Raju, learned counsel for the unofficial respondents, and perused the records.
27. As can be seen from the submissions made by both the applicant and the respondents, the issue to be adjudicated is whether juniors to the applicant can be promoted as Superintendents of Customs overlooking the claim of the applicant only on the sole ground that the applicant has not completed 8 years of qualifying service on the crucial date as on 01.01.2019, whereas the juniors who have been promoted have completed the qualifying service of 8 years.
28. We are of the view that the respondents have taken a very mechanical view in this matter by merely relying on the GSR Rules 1983 and the Recruitment Rules and implemented the same overlooking more than 5 years' experience gained by the applicant in his previous job as Inspector of Central Excise working under Customs Commissionerate, Shillong from 17.04.2006 to 22.07.2011. Mechanically applying the extant rules will result in loss of morale and demotivating the applicant especially when the delay in regard to joining the duty on 27.07.2011 has been caused both by the applicant as well as by the respondents. The respondents have in a routine manner sought the character verification of the applicant and waiting for the character verification report treating the applicant as if he is a fresh entrant in to Government service by writing to the Shillong Customs Commissionerateon 15.11.2010 and after a P a g e | 15 of 19 OA.No.020/020/2020 reminder on 26.11.2010 could get the character verification report only on 24.01.2011 well after the cut-off date of 31.12.2010. Thus, the respondents also have contributed to the delay resulting in crossing the deadline of 31.12.2010.
29. In this context, the Order of the Hon'ble High Court of New Delhi in the case of Govt. of NCT of Delhi v Rakesh Beniwal, in WP(C) No.7423/2013 dated 04.08.2014, quoted by the applicant, appear to have some relevance in this matter. The Hon'ble High Court of Delhi, in the above said case, had held that "the delay in appointment and the consequential denial of benefits is the direct corollary of the inaction of the department; consequently, they cannot take advantage of their own delays in declaring results and issuing appointment letters to deny promotion to the employee". In the above order, the Hon'ble High Court has relied upon the judgments of Hon'ble Supreme Court in the cases of Pilla Sitaram Patrudu & Others v. Union of India & Others (JT 1996 (4) 731/1996 SCALE (4) 192, and Union of India v. K.B. Rajoria, ((2000) 3 SCC 562). In Pilla Sitaram Patrudu's case, the Hon'ble Apex Court held that 'the applicants should be considered for promotion by notionally counting their service from the date on which junior joined rather than counting it from the date on which they actually joined themselves". In the case of K.B. Rajoria, the Hon'ble Supreme Court has clearly made "distinction between regular service and actual service". In the said case, the Apex Court had an occasion to deal with the term, 'regular' and it came to the conclusion that as long as an appointment is not irregular, the same is regular. The following is the relevant observation of the Hon'ble Apex Court in this regard:
P a g e | 16 of 19 OA.No.020/020/2020 10 . Finally, while considering the definition of the word "regular" in the Concise Oxford Dictionary , 9th Edn., the High Court noted that it meant:
"( 1 ) conforming to a rule or principle; systematic. ( 2 ) harmonious, symmetrical. ( 3 ) acting or done or recurring uniformly or calculably in time or manner; habitual, constant, orderly. ( 4 ) conforming to a standard of etiquette or procedure; correct; according to convention. ( 5 ) properly constituted or qualified; not defective or amateur; pursuing an occupation as one's main pursuit."
11 . The word "regular" therefore does not mean "actual" and the first question the High Court should have considered was whether the appointment of Krishnamoorti was regular and in accordance with the Rules or it was irregular in the sense that it was contrary to any principle of law.
30. Also the respondents have ignored the DoP&T OM No.AB-14017/12/88- Estt. (RR) dated 25.03.1996 which has already been in existence at that time when the applicant's name was being considered for promotion on the ground that this provision does not exist in Recruitment Rules GSR No.489 dated 08.06.1983. This DoP&T OM talks about the junior senior clause and for the sake of understanding, we are extracting the relevant para as below:
"Where juniors who have completed their qualifying/eligibility service are being considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying/eligibility service by more than half of such qualifying/eligibility service or two years, whichever is less, and have successfully completed their probation period for promotion to the next higher grade along with their juniors who have already completed such qualifying/eligibility service."
Having been aware of this DoP&T OM dated 25.03.1996, the respondents could have used their "power to relax" the Recruitment Rules of GSR 1983 to accommodate a class of persons similar to the applicant who has previous experience of working as Inspector of Central Excise.
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31. The Applicants have also brought to our notice the judgment of the Hon'ble High Court of Punjab &Haryana dated 24.08.2017 in CWP.No.14525 of 2016 where in the matter of promotion of Supdt. of Central Excise taking place at the Commissionerate level, juniors to the applicants who had completed 8 years of service as on 01.04.2015 had been included in the list of persons eligible for promotion as Superintendent for the vacancy year 2015-16. However, the Inspectors of the Chandigarh Commissionerate, who were of this very batch, joined "after 1.4.2007" had been declared ineligible by the petitioners on the premise of having not completed eight years of service. This stand cannot stand judicial scrutiny especially when admittedly, the applicants/respondents were issued appointment letters belatedly without any fault attributed to them for the delay.
32. The learned counsel for the Applicant has also brought to our notice the Orders of this Tribunal in OAs.No.207, 208 & 209 of 2020, dated 05.03.2020, wherein this Tribunal had discussed the applicability of DoP&T OM dated 25.03.1996, and also the judgment of Hon'ble Apex Court in R.Prabha Devi & Ors vs. Government of India ((1988) 2 SCC 233), wherein it has been held that "inordinate delay in amending the Rules cannot deprive the applicants of their promotion and considering the promotion of a junior while denying the same to him, who is senior, amounts to discrimination".
33. In view of the above position, the respondents are directed to consider for counting of the previous service of the applicant in the post of Inspector (Central Excise) under Customs Preventive Commissionerate, Shillong, by P a g e | 18 of 19 OA.No.020/020/2020 granting him relaxation up to 2 years in eligibility service as laid down in DoP&T OM dated 25.03.1996. Accordingly, the eligibility list should be redrawn and review DPC needs to be convened and the applicant needs to be considered for grant of promotion from the date/dates of his immediate junior with consequential benefits of pay fixation and seniority within a period of 08 (eight) weeks from the date of receipt of a copy of this order.
34. With the above observation, the OA is allowed. However, there shall be no orders as to cost.
( B.ANAND ) (SUDHI RANJAN MISHRA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
Dsn/ps/
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