Central Administrative Tribunal - Delhi
Ramakrishna Dutta vs Union Of India Through The Secretary on 31 October, 2012
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.1914/2010 Order reserved on 18th October, 2012 Order pronounced on 31st October, 2012 Honble Shri Sudhir Kumar, Member (A) Honble Shri A.K. Bhardwaj, Member (J) Ramakrishna Dutta Stenographer Grade II Directorate General of Export Promotion Ministry of Finance, Department of Revenue First Floor, Hotel Janpath, Janpath New Delhi-1 .. Applicant (By Advocate: Smt. Harvinder Oberoi) Versus 1. Union of India through the Secretary Department of Revenue North Block, New Delhi-1 2. The Chairman Central Board of Excise & Customs Department of Revenue Ministry of Finance North Block, New Dlehi-1 3. The Director General Directorate General of Inspection Customs and Central Excise D Block, IP Estate, New Delhi-2 ..Respondents (By Advocate: Shri R N Singh) O R D E R
Shri A.K. Bhardwaj:
In terms of the Directorate General of Inspection (Customs & Central Excise) Recruitment Rules of 1988 (Rules 1988 for short) in vogue, the Upper Division Clerks (UDCs) with five years regular service were eligible to participate in the selection test (written test/ interview/ physical test, etc.) for promotion to the post of Inspector. In terms of the said Rules, the Stenographers were not eligible to participate in the said selection process. However, in the year 1998, the applicant (Stenographer Grade III) participated in the All India Departmental Promotion Examination of Ministerial Officers to the grade of Inspectors held on 29-30.12.1998 and qualified the same. Albeit the UDCs, who qualified the said examination, were promoted to the grade of Inspector/Tax Assistant but the applicant was denied such promotion, thus he along with five others filed O.A.No.826/2004 before this Tribunal. By a common order dated 17.3.2005, this Tribunal disposed of the said OA along with OA-621/2005 expecting the respondents to consider the applicants in said OAs for promotion to the post of Inspectors in the wake of letter F.No.A-12034/60/2004.Ad.III/(B) dated 15.2.2005. Paragraph 4 of the order dated 17.3.2005 reads as under:-
4. In the wake of respondents letter dated 15.2.2005, in our view, this O.A. can be disposed of in the interest of justice and in the backdrop that a policy decision has now been taken vide letter dated 15.2.2005, to consider the Stenographers who have already qualified the departmental examination for promotion to the grade of Inspectors under the existing recruitment rules 2002, with the hope that respondents shall consider applicants, as they have qualified the requisite examination held in 1998, for promotion to the post of Inspector, within a period of three months from the date of communication of these orders. Ordered accordingly.
2. The review application No.137/2005 filed by the respondents seeking review of the order dated 17.3.2005 was dismissed in terms of order dated 25.7.2005 with the view that at the time of disposal of the OAs, the learned counsel for the respondents had not sought any opportunity to seek instructions from the respondents to comment upon the letter dated 15.2.2005 (Annexure A-5).
3. Questioning the orders passed by this Tribunal (ibid), the Union of India preferred W.P. (C) Nos.21430-32/2005 before the Honble High Court of Delhi. Taking the view that the Government had no adequate time to explain their stand regarding the letter dated 15.2.2005, i.e., the same was not applicable to Directorate General of Inspection, Honble High Court passed the order dated 17.5.2006 disposing of the said writ petitions giving liberty to the Union of India to file an affidavit based on the plea taken in the writ petition in respect of the letter dated 15.2.2005 in the review proceedings disposed of by this Tribunal with further direction for consideration of said affidavit by this Tribunal in the disposal of the review application in question. The order passed by Honble High Court resulted in recall of the orders passed by this Tribunal in OA No.826/2004 (along connected OA) as well as in R.A.No.137/2005 and the disposal of O.A.No.826/2004 afresh in terms of order dated 1.2.2007. The fresh contention of the respondents in the said OA before this Tribunal was that the letter dated 15.2.2005 was not applicable to Stenographer Grades II and III posted in Directorate General of Inspection, as there was no provision in the said Directorate for promotion of Stenographer to the post of Inspector. Finding no justification in the action / stand of the respondents of treating the Stenographer Grades II and III posted in Directorate General of Inspection differently from those posted in other Directorates, this Tribunal disposed of O.A.No.826/2004 again by order dated 1.2.2007 remitting the matter back to them to reconsider inclusion of applicants in the feeder category for promotion to the post of Inspectors, treating them at par with their counterparts and to pass a speaking order, with consequential benefits, with further direction to give due regard to the examination passed by the applicants in case of being treated at par with their counterparts. For easy reference paragraph 35 of the aforesaid order is extracted hereinbelow:-
35. In the result, keeping in light the decision of the Apex Court in Union of India v. K.S. Okkuta, (2002) 10 SCC 226 when we find that policy of the respondents is not in accordance with law, we remit this case to the Government, i.e., respondents for reconsideration of the aspect of inclusion of the applicants as feeder category for the post of Inspector in the matter of their promotion at par with their counterparts in Directorate of Inspection. This shall be done in the light of Article 14 of the Constitution of India and also keeping in mind the observations made in the body of this order. Such a consideration would culminate into a speaking order to be passed within a period of three months from the date of receipt of a copy of this order. If it is decided to meet out the same treatment to the applicants, a due regard would have to be given to the examination passed by the applicants and in such view of the matter, the promotion when accrues would entail all consequential benefits to the applicants. No costs.
4. In implementation of the aforesaid order passed by this Tribunal, the Director General of Inspections passed an order F.No.1040/14/2004-Pt. dated 21.8.2007 taking the view that the Recruitment Rules of 2002 were framed for Commissionerates / Zones taking into consideration their functional requirements, which are entirely different from the Central Excise and Land Customs Department Group C post Recruitment Rules 2002. Relevant excerpt of the said order enclosed by the applicant as Annexure A-10 to the OA reads as under:-
Regarding inclusion of Stenographers as a feeder category in RRs of 2002, I find that these rules were framed for Commissionertes/ Zones taking into consideration their functional requirements which are entirely different name the Central Excise & Land Customs Department Group C post Recruitment Rules, 2002 taking care of the needs of the Commissionerates/ Zones which are field formations. These Rules were in substitution of old Rules of 1979. The provisions of RRs cannot in compared with those RR 19988 made for the DGICCE cadre Directorates since the functional needs of these two organizations are different. Further Ministrys vide letter F.No.32011/77/2003-Ad.IIIA dated 15.3.2005 has clarified that Recruitment Rules of 2002 are not applicable to the DGICCE New Delhi.
I, further find that while joining their services in DGICCE as Stenographers, the applicants were well aware of their promotional aspects under RRs 1988 prevailing at the material time also. The said Rules.. provision thereof has not been altered to any disadvantage to the applicants and then discontentment in this regard does not seem to have crep justified grounds. The Stenographers have been given ample avenue for their promotions in their own channel through. Which they are being promoted to grades similar/at par with that of Inspector.
I, further observe that the examination qualified by the applicants was common departmental exam for promotion of ministerial staff to the post of Inspector as well as to the post of Assistants. The applicants were allowed to appear in the said exams to promote the successful stenographers to the post of Assistants and the successful UDCs to the post of Inspector. Taking of exams by the applicants does not confer any right for being considered for promotion to the post of Inspector under RRs 1988 as the applicants are not eligible in any case to consider them for promotion as Inspector under the said Rules.
5. Questioning the said order dated 21.8.2007, all those Stenographers, who were applicants in OA-826/2004 except the applicant herein, filed OA-2245/2007, which was disposed of by this Tribunal in terms of order date 17.10.2008 with a direction to the respondents to consider the claim of the applicants before it in the right perspective keeping in view the mandate of Article 14 of the Constitution of India. Pursuant to the said order, the Government of India, Ministry of Finance, Department of Revenue (CBEC) issued letter dated 23.12.2008 (page 149 of the paper book) addressed to the Director General, Directorate General of Inspection with reference to his letter F.No.1040/14/2004-Pt.II dated 14.11.2008 conveying the decision to grant promotion to applicants in OA-2245/2007 as a special case, not treating the same as precedent. After the issuance of said communication on behalf of respondent No.1, the applicant made several applications/representations to CPIO (Directorate General of Inspection), Director General (Directorate General of Inspection) and Director General (Directorate General of Export Promotion) seeking to know the reasons for his non-promotion as Inspector as well as the benefit of the promotion given to the five persons, who were applicants in OA-826/2004 (Annexure A-12 collectively).
6. In response to his representation dated 20.1.2009, the Assistant Director (Admn.), Directorate General of Inspector, Customs & Central Excise informed him that the Ministry vide its F.No.18013/2004-Ad.UIB (Vol.II) dated 23.12.2008 had directed the said Directorate to implement the order of the Tribunal dated 17.10.2008 passed in OA-2245/2007 by giving promotion to the applicant (Stenographers) in question as a special case without treating the same as precedent. Thus the applicant filed the present OA seeking issuance of directions to the respondents to treat him promoted as Inspector with effect from the date of examination, i.e., 29.12.1998 and to treat him promoted as Superintendent w.e.f. 29.12.2001, with all consequential benefits.
7. Learned counsel for the applicant submitted that the case of the applicant is identical to those who were applicants in OA-2245/2007 and he had been pursuing his claim jointly along with said applicants all along before this Tribunal as well as also before the Honble High Court in all the proceedings ibid, except OA-2245/2007 and in not giving him similar treatment in the matter of promotion to the post of Inspector, the respondents committed flagrant violation of Articles 14 & 16 of the Constitution of India.
8. In the counter reply filed on behalf of the respondents, it is pleaded that:
the Recruitment Rules, i.e., Directorate General of Inspector (Customs & Central Excise) (Group C and Group D posts) Recruitment Rules, 1988 clearly stipulate that the post of Inspector is filled 75% by deputation and 25% by promotion from UDCs with 5 years of regular service in the grade subject to their qualifying the written test besides satisfying other criteria and in terms of the said rules, the Stenographers posted in the Directorate General of Inspection are not eligible for promotion to the said post and the wrong promotion given to five Stenographers, who were applicants in OA-2245/2007, cannot be found basis of giving promotion to the applicant also in disregard of the recruitment rules.
9. Learned counsel for the respondents submitted that in view of the judgment of Honble Supreme Court Col. B.J. Akkara (Retd.) v. Government of India & others, (2006) 11 SCC 709, sometimes State Government may not choose to file appeals against certain judgments of the High Court rendered in writ petitions when they are considered as stray cases and not worthwhile invoking the discretionary jurisdiction of the Apex Court under Article 136 of the Constitution. At other times, it is also possible for the State, not to file appeals before the Apex Court in some matters on account of improper advice or negligence or improper conduct of officers concerned. It is further possible, that even where SLPs are filed by the State against judgments of the High Court, such SLPs may not be entertained by the Apex Court in exercise of its discretionary jurisdiction under Article 136 of the Constitution either because they are considered as individual cases or because they are considered as cases not involving stakes which may adversely affect the interest of the State. Paragraphs 25 and 26 of the said judgment read as under:-
25. A similar contention was considered by this Court in State of Maharashtra vs. Digambar [1995 (4) SCC 683]. This Court held:
"Sometimes, as it was stated on behalf of the State, the State Government may not choose to file appeals against certain judgments of the High Court rendered in Writ petitions when they are considered as stray cases and not worthwhile invoking the discretionary jurisdiction of this Court under Article 136 of the Constitution, for seeking redressal therefor. At other times, it is also possible for the State, not to file appeals before this Court in some matters on account of improper advice or negligence or improper conduct of officers concerned. It is further possible, that even where S.L.Ps are filed by the State against judgments of High Court, such S.L.Ps may not be entertained by this Court in exercise of its discretionary jurisdiction under Article 136 of the Constitution either because they are considered as individual cases or because they are considered as cases not involving stakes which may adversely affect the interest of the State. Therefore, the circumstance of the non-filing of the appeals by the State in some similar matters or the rejection of some S.L.Ps in limine by this Court in some other similar matters by itself, in our view, cannot be held as a bar against the State in filing an S.L.P. or S.L.Ps in other similar matters where it is considered on behalf of the State that non-filing of such S.L.P. or S.L.Ps and pursuing them is likely to seriously jeopardize the interest of the State or public interest."
26. The said observations apply to this case. A particular judgment of the High Court may not be challenged by the State where the financial repercussions are negligible or where the appeal is barred by limitation. It may also not be challenged due to negligence or oversight of the dealing officers or on account of wrong legal advice, or on account of the non-comprehension of the seriousness or magnitude of the issue involved. However, when similar matters subsequently crop up and the magnitude of the financial implications is realized, the State is not prevented or barred from challenging the subsequent decisions or resisting subsequent writ petitions, even though judgment in a case involving similar issue was allowed to reach finality in the case of others. Of course, the position would be viewed differently, if petitioners plead and prove that the State had adopted a 'pick and choose' method only to exclude petitioners on account of malafides or ulterior motives. Be that as it may. On the facts and circumstances, neither the principle of res judicata nor the principle of estoppel is attracted. The Administrative Law principles of legitimate expectation or fairness in action are also not attracted. Therefore, the fact that in some cases the validity of the circular dated 29.10.1999 (corresponding to the Defence Ministry circular dated 11.9.2001) has been upheld and that decision has attained finality will not come in the way of State defending or enforcing its circular dated 11.9.2001.
10. Learned counsel for the respondents has also placed reliance on the decision of this Tribunal in Harish Chand Bhatt v. Union of India & others (OA-2553/2009) decided on 26.7.2010 wherein it is viewed that no amendment of the Recruitment Rules under which the applicants were made eligible for promotion had been mentioned. Paragraphs 8 to 11 of the said order read as under:-
8. The operative part of the Tribunals order dated 17.10.2008 passed in OA No.2245/2007 is also extracted below:
25. In the result, for the foregoing reasons, OA stands allowed. Impugned order is set aside. We know our constraints that we cannot order promotion of the applicants, yet reiterate that the respondents shall consider the claim of the applicants in a right perspective keeping in view the mandate of Article 14 of the Constitution of India and also in the light of right to be considered for promotion on fair and equal basis, which has been a fundamental right guaranteed to them. The aforesaid consideration would entail a meticulous consideration of our observation made earlier in OA 826/2004 and also the observation in the body of the order in OA 2245/2007. A well-conscious reasoned decision by way of speaking order be passed within two months from the date of receipt of a copy of this order. We are of the considered view and hopeful that being a model employer Government shall dissuade dragging their employees unnecessarily before the Tribunal, which is not only a wastage of exchequer but also a heartburn which ultimately affects the Government itself. No costs.
9. It would be seen from the above that the Tribunal had not directed the respondents to promote the applicants but had only directed consideration of the matter keeping in its view and observations in the OA and in the earlier OA. It is not understood how the respondents have issued the promotion order in respect of the applicants in OA No.2245/2007 stating that this has been passed to implement the Tribunals order dated 17.10.2008. Further, no amendment of the Recruitment Rules has been mentioned under which the applicants were made eligible for the promotion.
10. As per the directions of this Tribunal on 5.03.2010, the respondents have filed an additional affidavit wherein they have categorically stated as under:
3 Stenographer is not a feeder cadre for consideration for promotion to the post of Inspector. It is submitted that the Recruitment Rules, i.e., Directorate General of Inspector (Customs & Central Excise) [Group `C and Group `D posts] Recruitment Rules, 1988 clearly stipulate that the post of Inspector is filled 75% by deputation and 25% by promotion from UDCs with 5 years of regular service in the grade and who have passed the written test are eligible to be considered for promotion to the post of Inspector, besides fulfilling other criteria.
11. In view of the above, the promotion order which has been issued in respect of the applicants in OA No.2245/2007 and stated to have been issued on the basis of the directions of this Tribunal in OA No.2245/2007, cannot be considered to be a valid order and the applicant in this OA would not be able to claim equality on the basis of such a wrong order. In any case, it is not possible for this Tribunal to direct any promotion de hors the recruitment rules.
11. In the detailed rejoinder filed on behalf of the applicant emphasis is laid on Article 14 of the Constitution of India inasmuch as according to him his juniors as well as similarly situated Stenographers have been regularly promoted as Inspectors with further promotion as Senior Inspecting Officer (now re-designated as Superintendent).
12. We have heard the learned counsel appearing for the parties and perused the record.
13. It is settled position of law that there is no principle of negative equality. The Honble Supreme Court in State of West Bengal & others v. Debasish Mukherjee & others, JT 2011 (11) SC 1 viewed as under:
21. It is now well settled that guarantee of equality before law is a positive concept and cannot be enforced in a negative manner. If an illegality or an irregularity has been committed in favour of any individual or group of individuals, others cannot invoke the jurisdiction of Courts and Tribunals to require the state to commit the same irregularity or illegality in their favour on the reasoning that they have been denied the benefits which have been illegality or arbitrarily extended to others (See: Gursharan Singh v. New Delhi Municipal Administration (JT 1996 (1)SC 647; 1996 (2) SCC 459),Union of India v.Krloskar Pneumatics Ltd. (JT 1996 (5)SC 26), Union of India v. International Trading Co. (JT 2003 (4) SC 549: 2003 (5) SCC 437) and State of Bihar Kameshwar Prasad Singh (JT 2000 (5) SC 389: 2000 (9) SCC 94). This question was exhaustively considered in Chandigarh Administration v.Jagjit Singh (JT 1995 (1) SC 445), wherein this Court explained the legal position thus:
8. The basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible in principle. Generally speaking, the mere fact that the authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted orders. The extra-ordinary and discretionary power of the High Court cannot be exercised for such a purpose. By refusing to direct the respondent-authority to repeat the illegality, the court is not condoning the earlier illegal act/order nor can such illegal order, constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law.
14. Admittedly, the Directorate General of Inspector (Customs & Central Excise) (Group C and Group D posts) Recruitment Rules, 1988 did not recognize the Stenographers as feeder grade for the post of Inspector and UDCs were eligible to be considered for such promotion.
15. The applicant joined as Stenographer Grade III in DGICCE, New Delhi on 8.10.1993 and completed five years service on 7.10.1998. He appeared in the All India level Departmental Examination on 29.12.1998 conducted by the National Academy of Customs, Excise and Narcotics for promotion to the post of Inspector and qualified the same. Admittedly, in terms of the Recruitment Rules of 1988, the applicant (Stenographer Grade III) was not eligible to be considered for promotion to the post of Inspector. Relevant provisions of the Rules extracted by this Tribunal in Harish Chand Bhatts case (supra) read as under:-
7. At the very out set, we reiterate that promotion to any post has necessarily to be made strictly in accordance with the relevant Recruitment Rules. The relevant part of Column 13 of the Recruitment Rules of 1988 for the post of Inspector is extracted below:
Promotion: From amongst Upper Division Clerk with 5 years regular service in the grade and who pass the written test. Note (i) The eligible officers shall be required to pass through an interview. (ii) Candidates shall be required to possess the physical standards and pass physical tests as specified below:-
For male candidates:
(i) Physical standard (Minimum) Height 157.5 cms.
Chest 81 cms.
(fully expanded with minimum expansion of 5 cms.) Relaxable by 5 cms. in the case of Garwalies, Assamese, Gorkhas and members of the Scheduled Tribes.
(ii) Physical Tests:
Walking 1600 meters in 15 minutes.
Cycling 8 Kms. In 30 minutes.
For female candidates
(i) Physical standard (Minimum) Height 152 cms.
Weight 48 Kgs.
Height relaxable by 2.5 cms. and weight by 2 Kgs. For Gorkhas, Garwalies, Assamese and members of the Scheduled Tribes.
(ii) Physical Tests:
Walking 1 Kms. In 20 minutes.
Cycling 3 Kms. in 25 minutes.
16. Thus, going strictly by the aforementioned rules in vogue, in the year 1998, the applicant was not eligible to be considered for promotion to the post of Inspector and even if he was allowed to participate in the examination de hors the rules, no right can be said to have been created in his favour. The Central Excise and Land Customs Department Inspector (Group C posts) Recruitment Rules, 2002 were issued in supersession of the Customs Department (Group C) Recruitment rules, 1979 and do not contain any reference of 1988 Rules. Rule 4 of the said Rules refers to each Commissionerate and not to Directorate General of Inspection. However, Rule 4 (2) provides that Notwithstanding anything contained in sub-rule (1), the jurisdictional Chief Commissioner of Central Excise may, if he considers to be necessary or expedient in the public interest so to do and subject to such conditions as he may determine having regard to the circumstances of the case and for reasons to be recorded in writing, order any post in the Commissionerate of Central Excise to be filled by absorption of persons holding the same or comparable posts belonging to cadre of another Commissionerate or Directorate under the Central Board of Excise and Customs. Column 12 of Schedule to the Recruitment Rules dated 29.11.2002 provides for the grade from which promotion / deputation/ absorption to the post of Inspector (Central Excise) is made. In the said Schedule, Stenographer Grade III with five years service are considered eligible for promotion to the post of Inspector (Central Excise) subject to the conditions mentioned in Note 2 contained in the said column. The letter dated 15.2.2005 in terms of which the Stenographer Grades II and III, who were already in the consideration list for promotion to the post of Inspector and had successfully cleared the written and physical test and had also appeared for interview but had not yet been promoted to the grade of Inspector due to lack of vacancies, might be allowed to be considered for promotion under the existing Recruitment Rules, 2002 was addressed to all Director Generals under CBEC. For easy reference, said letter is extracted hereinbelow:
To All Chief Commissioner of Central Excise & Customs All Chief Commissioner of Customs All Director Generals under CBEC All Commissioners of Central Excise (Customs/Directors under CBEC Subject: Non-inclusion of Stenographers Grade II and Stenographers Grade II from the feeder cadres for promotion to Inspector (C.Ex.), Inspector (P.O.) and Inspector (Examiner)- Reg.
Sir, I am directed to stay that the Board in its meeting held on 20.1.2004 has decided that the promotion from Stenos to Inspectors should be stopped and necessary amendments to the effect may be carried to the Recruitment Rules for Inspector (C. Ex), Inspector (P.O.) and Inspector (Examiner). Thereafter, a large number of references were received from the Chief Commissioners/ Commissioners/ Federation/ Associations and individuals of various Commissionerates under CBEC against non-inclusion of Stenographers Grade II and Stenographers Grade III from the feeder cadres for promotion to Inspector (C.Ex.), Inspector (P.O.) and Inspector (Examiner). They have also raised the point that the Stenographers Grade II and Stenographers Grade III who are already in the consideration list for promotion to the grade of Inspector and have successfully cleared the written and physical test and have also appeared for interview, but have not yet been promoted to the grade of Inspector due to lack of vacancies, may be allowed to be considered for promotion under the existing Recruitment Rules, 2002.
2. The matter has been reconsidered by the Board in its meetings held on 10.12.2004 and 29.12.2004 and it has been decided that Stenographers Grade II and Stenographers Grade III who have already qualified the departmental examination and/or the Stenographers Grade II and Stenographers Grade III who would qualify prescribed Departmental Examination for promotion to the grade of Inspector (C.Ex.), Inspector (P.O.) and Inspector (Examiner) before the date of Notification of new Recruitment Rules should be allowed to be considered for promotion under the existing Recruitment Rules, 2002 till the new Recruitment Rules are notified in the Gazette.
17. Though it is stare decisis that a benefit conferred upon an individual de hors the Rules cannot be found basis to claim same benefit at the strength of Articles 14 and 16 of the Constitution of India, but in the present case it is not clear from the pleadings of the parties that in what circumstances and under what provision of Rules, the Stenographer Grades II and III posted in Directorate General of Inspection (Central Excise and Customs) were allowed to participate in the All India Departmental Promotion Examination of Ministerial Officers to the grade of Inspectors held on 29-30.12.1998. Such circumstances need to be examined and addressed by the respondents with clarity, more so for the reason that the induction of UDCs as Inspectors, subject to qualifying the written examination, physical test and interview is not a routine or normal process for promotion in Government Departments. The possibility of such examination being open for Stenographers posted in all the Directorate of Generals as well as Commissionerates could not be overruled. Such possibility derives strength from the contents of the letter dated 15.2.2005, which is addressed not only to all Chief Commissioners of Central Excise and Customs, Chief Commissioner of Customs and Commissioners of Central Excise & Customs/Directors under CBEC but also to all Director Generals under CBEC. If Stenographer Grades II and III were not at all eligible to participate in the examination in question, there could be no reason and occasion to address the aforesaid letter to all Director Generals under CBEC. It is the stand of the respondents in order dated 21.8.2007 that the Directorate General of Inspector, Customs and Central Excise, New Delhi comprises following Directorates:
1. DGICCE, New Delhi
2. DG(Housing & Welfare), C & C.E. New Delhi
3. DG(Export Promotions) C & C.E. New Delhi
4. DG(Audit) C & C.E. New Delhi
5. DG(Vigilance) C & C.E. New Delhi
6. DG (Safeguard) C & C.E. New Delhi
7. Directorate of Personnel & Management, C & C.E. New Delhi
8. Directorate of Legal Affairs, C & C.E. New Delhi
9. Office of the Chief Departmental Representative, C & C.E. New Delhi
18. It is the case of the applicant in his rejoinder that in Directorate General of Revenue Intelligence, National Academy of Customs, Excise and Narcotics and Directorate of publicity and Public Relations and in all the Commissionerates under the same Central Board of Excise and Customs, Stenographer Grades II and III are being promoted regularly to the cadre of Inspectors. The said stand taken by the applicant also needs to be commented upon by the respondents.
19. As far as the judgment of the Honble Supreme Court in Col. B.J. Akkaras case (supra) relied upon by the learned counsel for the respondents is concerned, the view taken in the same may have no application in the present case for the simple reason that in OA-2245/2007 (supra), this Tribunal only required the respondents to examine the claim of the applicants before it, having due regard to Article 14 of the Constitution. In the said OA, this Tribunal nowhere directed the respondents to give promotion to the applicants therein. These are the respondents, who have granted promotion to the five Stenographers joined the present applicant in OA-826/2004, as a special case. While denying the promotion to the applicant in terms of order dated 5.4.2010, the respondents have not considered the fact that the five Stenographers promoted in terms of the order dated 23.12.2008 issued by the Ministry had joined the present applicant in OA-826/2004 for the reliefs granted to them as a special case. A governmental system, including the establishment and administration, is regulated by rule of law leaving no scope for any consideration, except as provided in the relevant rules itself. If the Stenographers (Grades II and III) were not eligible for promotion to the post of Inspector on the basis of the examination conducted in the year 1998 ibid, mere their appearance in the examination could not have created any right in their favour. There was nothing to prevent the respondents from sticking to their stand. In the case of Shankarsan Dash v. Union of India, (1991) 3 SCC 47, Honble Supreme Court viewed that even the selection of a candidate does not confer upon him any right of appointment to the post for which he is selected. However, in the present case, we do not find any firm and confident stand of the respondents regarding ineligibility of Stenographer Grades II and III for promotion as Inspectors. When the respondents received a direction for examination of the claim of applicants in OA-2245/2007 (supra), they promoted the concerned applicants as a special case. Might be in terms of 1988 rules applicable to Directorate General of Inspection the applicant was not eligible for being considered for promotion to the post of Inspector but he could be considered for promotion by operation of some other set of rules, i.e., 1979 Rules. In the absence of any material before us, we are unable to take a view on the circumstances in which the applicant participated in the selection process in the year 1998. In the present OA, the applicant has not even questioned the decision of the respondents dated 21.8.2007 as well as the communication dated 5.4.2010. He has sought the extension of benefit of order passed in OA-2245/2007 whereby the respondents were directed to take a decision regarding claim of the applicants before it for promotion by way of a speaking order. Normally in the absence of a prayer questioning the impugned order, which is dated 5.4.2010 in the present case, we could have rejected the OA but in view of the prescribed format of filing the OA before this Tribunal, suggesting particulars of the order/orders against which the application is made to be indicated in paragraph 1 of the OA and the mention of order dated 5.4.2010 as an order against which the application is made, as per said format as well as to secure the ends of justice, we deem it appropriate to dispose of the present OA with a direction to the respondents to examine:
under what rules the All India Departmental Promotion Examination of Ministerial Officers to the grade of Inspector was held on 29-30.12.1998, whether the UDCs / Stenographer Grades II and III only from Commissionerate and not from the Directorate General/ Directorates/ CDR Office mentioned in paragraph 2 of the order dated 21.8.2007 were allowed to participate in the said examination and given consequential promotion, if the Stenographer Grades II and III of the said Directorate General/ Directorates/ CDR Office were not eligible to participate in the examination in question, under what circumstances, the letter F.No.A-12034/60/2004.Ad.III(B) dated 15.2.2005, which concerns only Stenographer Grades II and III alone, was addressed to all the Director General under CBEC, in what circumstances, the five applicants in OA-2245/2007 (supra) were given promotion as Inspector as a special case.
20. Outcome of the aforesaid examination would be communicated to the applicant by way of a speaking order within a period of four months from the date of receipt of a copy of this order. OA disposed of. No costs.
( A.K. Bhardwaj ) ( Sudhir Kumar ) Member (J) Member (A) /sunil/