Central Administrative Tribunal - Delhi
Pradeep Kumar vs M/O Finance on 12 September, 2022
1 OA No.3316/2015
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 3316/2015
MA No.2931/2015
Order reserved on: 01.09.2022
Order pronounced on: 12.09.2022
Hon'ble Mr. Anand Mathur, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
1. Pradeep Kumar
S/o Nanak Chand,
R/o RZ-7-B, Shankar Park,
West Sagar Pur,
New Delhi-1100446
2. Jeetendra Kumar
S/o Ram Prasad Das,
R/o A/6 Christian Colony, Patel Chest,
Delhi University
Delhi- 110007
3. Amit Kumar Prabhakar
S/o Late Ram Jeevan Lal,
R/o Moh-Anand Puri, Post-Khagaul,
District- Patna
Bihar
4. Santosh Kumar
S/o Ram Kishor Singh,
R/o Moh-New Karman Tola,
Ara Po+PS-Nawada,
Ara-Bhojpur,
Bihar
5. Vijay Mavi
S/o Rajender Mavi,
R/o 183, Mohalla, Tekhand,
New Delhi-110020
6. Abhinandan Kumar Chaurasia
S/o Saty Narayan Chaurasia,
R/o Betel Shop, Devi Mandir Chowk,
Azamgarh, U. P.
2 OA No.3316/2015
7. Sanjay Kumar
S/o Ram Udgar Singh,
R/o Flat No. 605, Shipra Tower,
Ghaziabad,
Uttar Pradesh
8. Swapan Kumar Mandal 22024
S/o Saresh Kumar Mandal,
R/o Village - Nidhir Pota,
PO- Bhairabchandrapur, Nadia,
West Bengal
9. Manju
S/o Om Prakash,
R/o 316 Janta Flats, GTB Enclave,
Delhi-110093
10. Lalawmpuia Colney
S/o Kapmawia Colney,
R/o H-124, 1st Floor, Mohmmad Pur,
Near Bhikaji Kama,
Delhi-110006
11. Dharmendra Meena
S/o Dalu Ram Meena,
R/o M-103, Kasturba Nagar,
New Delhi
12. Parmod Chandra
S/o Late Sh. Damodar Paliwal,
R/o Q. No. 594, 3rd Floor, J Block, Kali Badi Marg,
Gole Market, New Delhi
13. Brij Lal
S/o Lagnoo Ram,
R/o Q. No. F-92, Moti Bagh,
New Delhi
14. Shivang
S/o Late Sh. Gurmukh Das Sharma,
R/o A-11, Dayanand Colony, Lajpat Nagar-IV,
New Delhi-110024
15. Babu Lal Meena
S/o Dhan Pal Meena,
R/o Qtr No. 249, Type-I, Lodhi Road,
Ali Ganj, New Delhi- 110003
3 OA No.3316/2015
16. Ram Krishan Tokas
S/o Ranbhir Singh,
R/o 243, 3rd Floor, Munirka Village,
New Delhi.
17. Amreshwati
S/o Ram Krishan,
R/o 1/5347 Balbir Nagar, Shahdra,
Delhi-110032
18. Roshni Kale
S/o Late Sh. Amardeep Kale,
R/o H. No. 5-12-C-49, Peddamma Temple,
Sadar Bazar, Bolarum, Sikandrabad,
Andhra Pradesh
....Applicants
(By Advocate: Mr. Pradeep Dahiya)
Versus
1. Union of India
Through its Secretary,
Ministry of Finance,
North Block,
New Delhi -110001.
2. The Chairman
Central Board of Excise and Customs
Ministry of Finance,
North Block,
New Delhi -110001.
3. The Director General
Directorate of Inspection
(Customs & Central Excise), renamed as
Directorate General of Performance Management
(Customs, Central Excise & Service Tax)
I.P. Estate, New Delhi.
... Respondents
(By Advocate: Mr. S.N.Verma)
4 OA No.3316/2015
ORDER
By Hon'ble Anand Mathur, Member (A) By way of present OA, the applicants herein (eighteen in number) seek to challenge the inaction of the respondents in not taking any decision on the representations of the applicants for consideration of their names for promotion to the post of Senior Tax Assistants although they are being eligible for promotion after having completed three years of regular service in the grade of Tax Assistant and have passed the departmental examination in computer application as specified by the competent authority. They are legally entitled to be promoted to the post of Senior Tax Assistant in view of the DOPT OM No. AB. 14017.79/2006/Estt. (RR) dated 06.09.2007 issued by DOPT, which had been issued in view of the judgment of Hon'ble Supreme Court of India in the case of Union of India v. V. Ramakrishnan and Ors., (2005) 8 SCC 394, thereby providing that the Recruitment Rules are statutory and they will not cease to operate unless they are repealed. Hon'ble Supreme Court of India in this judgment held that:
"A rule does not become inoperative only because the UPSC says so. A rule validly made even if it has become unworkable unless repealed or replaced by another rule amended, continues to be in force.
xxx xxx xxx 5 OA No.3316/2015 Valid rules made under proviso appended to the Article 309 of the Constitution of India operates so long the said rule are not repealed and replaced. The draft rule, therefore, could not form the basis for grant of promotion, when the rules to the contrary is holding the field."
2. The action of the respondents is also illegal and arbitrary as Hon'ble Supreme Court has held time and again that the applicable law for promotion would be that law which was in force on the date of vacancy and any change in law subsequent thereto would be inapplicable [See Y. V. Rangaiah v J. Sreenivasa Rao, (1983) 3 SCC 284, pr. 9; Arjun Singh Rathore v B. N. Chaturvedi, (2007) 11 SCC 605; State of Punjab v Arun Kumar Aggarwal, (2007) 10 SCC 402, pr. 30; State of Bihar v Mithilesh Kumar, (2010) 13 SCC 4671.
3. It is further submitted that the action of the respondents suffers from the vice of hostile discrimination as the other Commissionerates under the respondent No.1 like Central Excise, Chandigarh Zone vide Establishment Order No. 93/2014 dated 08.10.2014, Central Excise, Pune Zone vide Order No. 22/CCC/CON/PZ/2014 dated 17.10.2014, Office of the Chief Commissioner of Central Excise, Delhi vide Establishment Order No. 57/2015 dated 31.03.2015 and Office of the Chief Commissioner of Central Excise & Service Tax, Ranchi Zone vide Establishment Order No. 27/2015 dated 30.07.2015 have promoted similarly placed Tax 6 OA No.3316/2015 Assistants like the applicants, to the grade of Senior Tax Assistants on regular basis on the basis of the existing RR's of field formations of CBEC issued vide GSR No. 39(E) dated 16.01.2003. As per this notification, the eligibility criterion for promotion to the grade of STA is 3 years of regular service in the grade of TA. The RRs of DGICCE issued vide GSR 452(E) dated 14.07.2004 are similar to the field formations and the eligibility criteria is also the same i.e. TA with 3 years of regular service. There is absolutely no justification to/treat the issue of promotion of applicants differently. It is further submitted that it is in clear violation of Article 14 of the Constitution of India.
4. On the above premises, the applicants are seeking the following reliefs:
"(i) Quash and set aside Letter No. F. No A-12018/ 07/2014-Ad. IIB dated 04.06.2015 issued by respondent No.1 to the extent of issue of promotion of the applicants to the grade of Senior Tax Assistants, wherein it is stated that the issue was clarified through O. M. No. AB-
14017/61/2008-Estt. (RR) dated 24.03.2009 and dated 12.03.2010;
(ii) Direct the respondents to promote the applicants to the post of Senior Tax Assistants w.e.f. the date of availability of vacancy in the grade and as per their eligibility and suitability with all consequential benefits including seniority, pay-fixation and arrears of pay etc.;
(iii) Pass any such other or further order(s) as this Hon'ble Tribunal may deem fit and proper in the interest of justice and in favour of the Applicant."
5. It has been further submitted that as per the O.M. dated 08.09.1998 and 11.03.2011 (supra), which are also upheld 7 OA No.3316/2015 and directed to be followed by Hon'ble Supreme Court in Union of India v N. R. Banerjee (1997) 9 SCC 287, the crucial date for determining eligibility would be 01.01.2015 for the vacancy year 2015-2016. Therefore, the Recruitment Rules as on 01.01.2015 would be applicable to the applicants for consideration of their cases for promotion. As per these OMs, the DPC for consideration of the cases of the applicants ought to have been held in any case on or before 30.11.2014. It is pertinent to note that the Recruitment Rules for the re- designated post of Executive Assistant have not been framed till date.
6. It is also submitted that as per the DOPT OM No. 22011/5/86-Estt. (D) dated 10th April, 1989, containing guidelines on Departmental Promotion Committees (DPC), the DPC's should be convened at annual regular intervals to draw panels, which could be utilised on making promotions against the vacancies occurring during the course of a year. For this purpose it is essential for the concerned appointing authorities to initiate action to fill up the existing as well as anticipated vacancies well in advance of the expiry of the previous panel by collecting relevant documents like CR's, integrity certificates, seniority list, etc. for placing before the DPC. This OM further provided that the vacancies shall be filled up in accordance with the Recruitment Rules in force on 8 OA No.3316/2015 the date of vacancy, unless rules made subsequently have been expressly given retrospective effect.
7. It was also urged that case of the applicants were being ignored for their region and, the Director General vide Office communication dated 18.11.2014 brought this to the notice of the Higher Authorities, which reads as under:-
"2. In this connection, it has been brought to our notice that Central Excise, Chandigarh Zone and Central Excise, Pune Zone have promoted TAs to STAs on the basis of the existing RRs of field formations of CBEC issued vide GSR no. 39(E) dated 16/01/03(copies of promotion orders enclosed). As per this notification, the eligibility criteria for promotion to the grade of STA 1s 3 years of regular service in the grade of TA. The RRs of DGICCE issued vide GSR 452 E) dated 14.07.04 are similar to the field formations and the eligibility criteria is the same i.e. TA with 3 years of regular service.
3. The TAs of this office have represented in the matter, requesting for promotion on the lines of orders issued by Chandigarh & Pune Zones. Their grievances are genuine and need to be addressed immediately."
8. Per contra, learned counsel for the respondents states that applicants herein have been granted promotion during the pendency of the present OA vide office Order dated 23.9.2015, which reads as under:
"OFFICE ORDER The following Tax Assistants of this Directorate General are hereby promoted in the grade of Senior Tax Assistant on regular basis in the Pay Band-2 of Rs. 9300-34800 with Grade Pay of Rs. 4200/- with effect from the date they take over charge of the post:
S.No. Name of the candidate
1. Sh. Brij Lal
2 Smt. Amreshwati
9 OA No.3316/2015
3. Sh. Pramod Chandra
4 Sh. Ram Kisan Tokas
5. Sh. Babu Lal Meena
6. Sh. Shivang Sharma
7. Sh. Hitesh Sabharwal
8 Sh. Amit Kumar Prabhakar
9 Sh. Santosh kumar
10. Sh. Vijay Mavi
11. Sh. Abhinandan Kumar Chaurasia
12. Sh. Sanjay Kumar
13. Smt. Roshni Kale
14. Sh. Swapan Kumar Mandal
15. Sh. Pradeep Kumar
16. Ms. Manju
17. Sh. Lalawmpuia Colney
18. Sh. Dharmendra Meena
This issues with the approval of Competent Authority.
(Jasminder S. Saini) Assistant Director (Admn.)"
9. It is further contended that nothing further survives in the present OA. It has been further contended that as per existing Recruitment Rules (RRs) for the posts of Senior Tax Assistant (STA) in the pay scale of Rs.5000-150-8000 (pre- revised scale of pay) notified vide GSR 452 (E) dated 14.07.2004, the provision of 3 years of regular service in the grade of Tax Assistant (TA) in the pay scale of Rs.4000-100- 6000 (pre-revised scale of pay) had been made as qualifying service for promotion to the grade of STA. Further, the pay 10 OA No.3316/2015 structure for the posts of TA and STA have been revised into the structure PB-1 with GP Rs.2400 and PB-1 with GP Rs.4200/- respectively w.e.f. 01.01.2006 due to implementation of CCS (Revised Pay) Rule, 2008 which is notified vide GSR 622 (E) dated 29.08.2008. Accordingly, the action for amending the existing provisions from 3 years of qualifying service as TA to 10 years of qualifying service as TA at Column No.12 of the respective RRs for STA has been initiated as per the guidelines issued by the DOPT's OM No.AB 14017/61/2008-Estt.(RR) dated 24.03.2009 and it was in process of finalization at that time. Since the period of 10 years of service is too long in comparison to 3 years of service in pre-revised regime as this could affect the process of filling up of the vacant posts, hence, had taken some valuable time to reach to conclusion for the decision. In the meantime, the cadre restructuring, 2013 in CBEC was declared vide Ministry's order issued under F.No.A.11019/08/2013-Ad.IV dated 01.08.2014 and during this course the posts of DOs and STA sanctioned/existed prior cadre restructuring, 2013 in formations of CBEC have been merged into single newly created post viz. Executive Assistant with pay structure in PB-2 with GP Rs.4200/-. Due to the complexity in nature to execute the order of merger of these posts as well as the period of qualifying service, certain issues had been discussed in intra and inter 11 OA No.3316/2015 departmental authorities including respective Ministry, DOPT, Cadre Controlling Authority and representatives of employees to resolve the issues and it has taken considerable time to finalize the matter. Finally, the decision has been taken in justifiable manner after examining all the issues and it has been decided by the Ministry to fill up the vacancies arisen against sanctioned strength prior to cadre restructure, 2013 in CBEC (i.e. prior to 01.08.2014) can be filled on the basis of the existing RRs of STA notified under GSR 452(E) dated 14.07.2004 and the vacancies arisen on account of sanctioned strength allocated in cadre restructuring, 2013, has to be filled in on the basis of RRs to be notified for the posts of EA. The decision has been conveyed through the Ministry's letter dated 17.09.2015 to all the concerned related to CBEC.
10. Keeping in view of the above, this office has promoted 18 TAs to the grade of STA w.e.f. 23.09.2015 considering the vacancies arisen prior to cadre restructuring, 2013 on the basis of existing RRs notified under GSR 452 (E) dated 14.07.2004.
11. Moreover, as per this Ministry's order/decision, this office has promoted 18 TAs to the grade of STA w.e.f. 23.09.2015 considering the vacancies arisen prior to cadre restructuring, 2013 on the basis of existing RRs notified 12 OA No.3316/2015 under GSR 452 (E) dated 14.07.2004. Therefore, the application for appointment to the grade of STAs from the date prior to promotion held on 23.09.2015, is not acceptable as:
i) Promotion is not a matter of right;
(ii) All the issues including question of qualifying service have been taken into consideration during the time of process for resolving the issue and the aforesaid decision has been taken in justifiable manner by the proper authority, and
(iii) Since, the issues were very complex in nature in terms of qualifying service, method of filling of the posts, promotional avenues, merger of two different posts & their seniority etc., the time taken for decision making is justifiable and nominal in nature.
12. The learned counsel for the respondents relied upon decision of the Hon'ble Apex Court in State of Himachal vs. Raj Kumar CA No. 9746/2011 decided on 20.5.2022. He further relied upon yet another decision of the Hon'ble Apex Court CA No.8833-8835 of 2019 decided on K. Mehgachandra Singh and ors vs. Ningam Siro and ors decided on 19.11.2019.
13. Learned counsel for the applicant has also filed his written submissions wherein he has relied on judgments of the Hon'ble Supreme Court in the cases of N.R.Banerjee 13 OA No.3316/2015 (supra), V.Ramakrishnan (supra) and T.R.Kapoor and others vs. State of Haryana and others, (1989) 4 SCC 71. He has further relied on two decisions of this Tribunal in OA No.856/2011 dated 14.12.2012 and OA No.1773/2014 dated 05.12.2014.
14. We have gone through the aforesaid decisions relied upon by the learned counsel for the applicants. We may highlight that the the Hon'ble Apex Court in the case of State of Himachal vs. Raj Kumar, CA No. 9746/2011 decided on 20.5.2022 settled the law as under :-
"4.2 We have taken note of the fact that there are a large number of decisions that have either followed the principle in Rangaiah or have distinguished it. The principle in Rangaiahs case has given rise to a number of decisions, most of them have disapplied Rangaiah and have in fact, watered-down the principle while distinguishing it. In this view of the matter, and for clarity and certainty, it is necessary for us to review the subject and restate the principle in simple and clear terms"
******* "29.1 In Deepak Agarwal v. State of U.P. 51 , the question arose as to whether the appellants therein were entitled to be considered for promotion to the post of Deputy Excise Commissioner under the U.P. Excise Group „A‟ Service Rules, 1983. The prayer was for consideration to the vacancies which occurred prior to the amendment of 1999 Rules. Reliance was placed on Rangaiah which was rejected. The Court observed as under:-
"24. We are of the considered opinion that the judgment in Y.V. Rangaiah case would not be applicable in the facts and circumstances of this case. The aforesaid judgment was rendered on the interpretation of Rule 4(a)(1)(i) of the Andhra Pradesh Registration and Subordinate Service Rules, 1976. The aforesaid Rule provided for preparation of a panel for the eligible candidates every year in the month of September. This was a statutory duty cast upon the State. The exercise was required to be conducted each year. Thereafter, only promotion orders were to be issued. However, no panel had been prepared for the year 1976. Subsequently, the Rule was amended, which rendered the petitioners therein ineligible to be considered for promotion. In these circumstances, it was observed by this Court that the amendment would not be 14 OA No.3316/2015 applicable to the vacancies which had arisen prior to the amendment. The vacancies which occurred prior to the amended Rules would be governed by the old Rules and not the amended Rules.
25. In the present case, there is no statutory duty cast upon the respondents to either prepare a year wise panel of the eligible candidates or of the selected candidates for promotion. In fact, the proviso to Rule 2 enables the State to keep any post unfilled. Therefore, clearly there is no statutory duty which the State could be mandated to perform under the applicable Rules. The requirement to identify the vacancies in a year or to take a decision as to how many posts are to be filled under Rule 7 cannot be equated with not issuing promotion orders to the candidates duly selected for promotion. In our opinion, the appellants had not acquired any right to be considered for promotion. Therefore, it is difficult to accept the submissions of Dr. Rajeev Dhavan that the vacancies, which had arisen before 17-5-1999 had to be filled under the unamended Rules.
It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the "rule in force" on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Rangaiah case lays down any particular time-frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants has been taken away by the amendment.
28. In our opinion, the matter is squarely covered by the ratio of the judgment of this Court in Dr. K. Ramulu. In the aforesaid case, this Court considered all the judgments cited by the learned Senior Counsel for the appellant and held that Rangaiah case would not be applicable in the facts and circumstances of that case. It was observed that for reasons germane to the decision, the Government is entitled to take a decision not to fill up the existing vacancies as on the relevant date. It was also held that when the Government takes a conscious decision and amends the rules, the promotion have to be made in accordance with the rules prevalent at the time when the consideration takes place."
29.2 This is a very important case which recognises many points of distinction. (a) The Court found that there is no statutory duty cast on the Government to prepare panels as in the case of Rangaiah, (b) a candidate has a right to be considered only as per the existing rules, i.e., "the rule in force", (c) the rule 15 OA No.3316/2015 applicable is the rule in force as on the date of consideration, (d) the principle in Rangaiah has no universal application, (e) for reasons germane to its decision, the Government is entitled to take a conscious decision about the filling of the vacancies and the rules applicable. This decision made deep inroads into the principle laid down in Rangaiah's case.
***** Analysis:
36. A review of the fifteen cases that have distinguished Rangaiah would demonstrate that this Court has been consistently carving out exceptions to the broad proposition formulated in Rangaiah. The findings in these judgments, that have a direct bearing on the proposition formulated by Rangaiah are as under:
1. There is no rule of universal application that vacancies must be necessarily filled on the basis of the law which existed on the date when they arose, Rangaiah's case must be understood in the context of the rules involved therein.
2. It is now a settled proposition of law that a candidate has a right to be considered in the light of the existed rules, which implies the "rule in force" as on the date consideration takes place. The right to be considered for promotion occurs on the date of consideration of the eligible candidates.
3. The Government is entitled to take a conscious policy decision not to fill up the vacancies arising prior to the amendment of the rules. The employee does not acquire any vested right to being considered for promotion in accordance with the repealed rules in view of the policy decision taken by the Government. There is no obligation for the Government to make appointments as per the old rules in the event of restructuring of the cadre is intended for efficient working of the unit.
The only requirement is that the policy decisions of the Government must be fair and reasonable and must be justified on the touchstone of Article 14
4. The principle in Rangaiah need not be applied merely because posts were created, as it is not obligatory for the appointing authority to fill up the posts immediately.63 5. When there is no statutory duty cast upon the State to consider appointments to vacancies that existed prior to the amendment, the State cannot be directed to consider the cases."
(emphasis supplied) 16 OA No.3316/2015
15. In light of above settled proposition of law enunciated by the Hon'ble Apex Court, when one of the grounds urged by the Learned Counsel himself relying upon Rangaiah's case (supra), some queries were put to the learned counsel for the applicants during the course of hearing as to what is the basis of laying the claim for promotion prior to 23.9.2015 (Annexure -R-7), as to
(i) whether all zones were having a common seniority list of Tax Assistant? ( Answer : NO)
(ii) Whether said common list has been filed by him. ( Answer : NO)?
(iii) Another query was put whether any junior(s) to the applicants have been granted seniority in their zone ? ( Answer : NO) ?
(iv) Whether you have given the date of occurrence of vacancy in your Zone ? ( Answer : No).
(v) Whether you had sought amendment to OA pursuant to 23.9.2015 ( Annexure -R-7) ? (Answer : There was no need as they there is delay on part of respondents as they failed to adhere to DPC in time bound manner).
16. In this background, since the applicants have been granted promotion and are enjoying the benefits thereto the 17 OA No.3316/2015 reliefs as highlighted above have become infructuous. Hence, OA is disposed of as infructuous.
17. MA No.2931/2015 has already been allowed vide Tribunal's order dated 26.05.2022.
There shall be no order as to costs.
(Manish Garg) (Anand Mathur) Member (J) Member (A) /sd/