Central Administrative Tribunal - Kolkata
Ningma Doma Yolmo vs Central Excise And Customs on 21 March, 2024
1 OA 281/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH
KOLKATA
O.A. 350/00281/2023
DATE OF ORDER : 21.03.2024
Coram: Hon'ble Mr. Jayesh V. Bhairavia, Judicial Member
Hon'ble Mr. Suchitto Kumar Das, Administrative Member
In the matter of :
Ningma Doma Yolmo,
Daughter of Prem Yolmo, aged about 36 years, By
occupation- Inspector (Ad-hoc), Commissioner of CGST &
CX, Siliguri Commissionerate/ Siliguri, residing at Toong
Soong, Ganesh Gram, T.N. Road, Darjeeling- 734101, Code-
712248.
Group-B Service,
Issue- Promotion/ Reversion.
.............Applicant
VS.
1. Union of India, service through the Secretary, Department
of Revenue, Ministry of Finance, North Block, New Delhi -
110001.
2. The Chairman, Central Board of Indirect Taxes & Customs,
Ministry of Finance, Department of Revenue, 4th Floor,
Hudco Vishala Building, Bhikaji Cama Place, New Delhi-
110066.
3. The Joint Secretary (Admin), Central Board of Indirect
Taxes & Customs, Ministry of Finance, Department of
Revenue, 4th Floor, Hudco Vishala Building, Bhikaji Cama
Place, New Delhi-110066.
4. The Principal Chief Commissioner of CGST & Central
Excise, Kolkata Zone, 180, Shanti Pally, Rajdanga Main Road,
Kolkata- 700107.
.........Respondents
2 OA 281/2023
For The Applicant(s): Mr. Arpa Chakraborty, Counsel
For The Respondent(s): Mr. K. K. Maity, Counsel
Mr. T. Bhanja, Counsel
O R D E R (ORAL)
Per: Hon'ble Suchitto Kumar Das, Administrative Member The applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 praying for the following relief:
"a) An order do issue directing the respondents to act and proceed in accordance with the provisions of law;
b) Clarification No. 1 of 2021 dated 6th January, 2021 issued by the respondents to the extent the same incorporates the aforesaid Clause of 'Particular Zone' [Clause 3(a)] in violation of the condition of Inter-Commissionerate Transfers vide ICT Circular filed 27th October, 2011 vide Clause 2(ii), Board Circular bearing File No. A. 32011/03/2015-Ad. III.A. dated 13th November, 2020 read with the DoP&T OM being F. No. AB. 14017/48/2010-Estt. (RR) dated 31.12.2010 especially Para 3.1.3 thereof as well as the Clarification under Para No. 2(3) of the Classification No. 1 of 2021 dated 6th January, 2021 itself and judicial prepositions settled by the Hon'ble Supreme Court of India in the case of Pratibha Rani & Ors. Vs. Union of India & Ors. And Union of India & Ors. Vs. C. N. Ponnappan is not tenable in the eye of law and as such the same should be quashed;
c) An order do issue directing the respondents to extend the benefit of the DoP&T OM being F. No. AB. 14017/48/2010-Estt. (RR) dated 31.12.2010 especially Para 3.1.3 thereof read with Board Circular bearing File No. A. 32011/03/2015-Ad. III.A. dated 13th November, 2020 and thereby setting aside the Office Order CCA/03/2023 dated 20.02.2023 with respect to the applicant and thereby restraining the respondents in reverting the applicant to the post of EA from the post of Inspector;
d) An order do issue directing the respondents to retain the benefit of promotion in the post of Executive Assistant in favour of the applicant against the vacancies occurred between the intervening period from 18.12.2013 and 27.09.2015 taking into account the eligibility with effect from the initial date of regular appointment as Tax Assistant in the previous zone, i.e., the completion of 3 years qualifying service before the new Recruitment Rules of 2015 came into force with effect from 28.07.2015 and thereby include her name in the Order being No. CCA/01/2023 dated 20.02.2023 and to proceed with changing terminology of her status to be changed to regular EA from regular STA;3 OA 281/2023
e) To grant all consequential benefits;
f) To grant costs and incidentals;
g) Certify and transmit the entire records and papers
pertaining to the applicant's case so that after the causes shown thereof conscionable justice may be done unto the applicant by way of grant of reliefs as prayer for in (a), (b) and (c) above;
h) Any other order or orders as the Hon'ble Tribunal deems fit and proper."
2. For the sake of clarity, facts in the case are delineated and discussed hereinunder :-
2.1 The applicant joined the respondent organisation as Tax Assistant in Mumbai Zone on 31.08.2010. At present, she is working as an Inspector on ad-
hoc basis after being promoted from the post of regular erstwhile Sr. Tax Assistants.
2.2 CBEC vide its circular dated 27.10.2011 lifted the ban on Inter- Commissionerate transfer (ICT) in respect of willing officers in Group 'B', 'C' and 'D' posts. The applicant opted for Inter-Commissionerate transfer. At her request, the applicant was transferred to Kolkata Zone vide order dated 27.01.2014. She joined Kolkata zone on 07.02.2014. The applicant was thereafter promoted to the grade of erstwhile Sr. Tax Assistants (STA) on ad- hoc basis w.e.f. 21.04.2015. She was regularized in the post of erstwhile Sr. STA (pre-restructuring) w.e.f. 01.04.2015. She was subsequently promoted to the post of Inspector on ad-hoc basis w.e.f. 02.06.2017. 2.3 On 06.01.2021, the respondents issued a clarification in respect of policy for promotion of Tax Assistants in which it was stated that for being considered for promotion after completion of the residency period "The official should have been in the Feeder Cadre of that particular zone before 18.12.2013". The applicant did not come under the zone of consideration for 4 OA 281/2023 the purpose of promotion from Tax Assistants to Sr. Tax Assistants as she had joined Kolkata Zone in 2014. Sr. Tax Assistants were later designated as Executive Assistants (EAs). The applicant was regularised as an EA on 15.02.2023 although she had already been regularised as a STA w.e.f. 01.04.2015. Hence, this OA.
3. Learned counsel for the applicant submits that the cadre restructuring took effect in CBEC on 18.12.2013 by which the posts of STAs and Dy. Office Superintendent were merged into one post called Executive Assistants. However, the Recruitment Rules for Executive Assistants came into effect from 28.07.2015. CBEC vide its memorandum dated 13.11.2020 clarified that the Recruitment Rules issued in 2010 for the post of STAs would be applicable for promotion to the post of STA/EA for the intervening period between 18.12.2013 (date of cadre restructuring) and 28.07.2015 (date on which the Recruitment Rules for EA were notified). Learned Counsel for the applicant further submits that DoP&T and CBEC had clarified earlier that the residency period for promotion to a post will include the period spent in the feeder post in the earlier place of posting. It was in the light of the above noted instructions that the applicant who had joined service on 31.08.2010 was promoted as STA w.e.f. 01.04.2015. This position has now been reversed by the provision contained in para 3(a) of CBEC's clarification dated 06.01.2021. 3.1 Learned Counsel for the applicant submits that the respondents misdirected themselves in not appreciating that, following the ICT Circular and the DoP&T OM, the applicant having joined the initial zone on 31.08.2010 became entitled to be considered for promotion to the post of EA against the vacancy year 2015-2016 on completion of qualifying regular service from the date of her initial appointment.
5 OA 281/20233.2 Learned counsel for the applicant submits that the respondents have acknowledged in paragraph 7 of the reply that "in order to avail the protection clause extended under paragraph 3.3.1 of the OM dated 31.12.2010, a Tax Assistant should have held the feeder post position prior to 18.12.2013". Therefore, it is perplexing that they are contesting the applicant's promotion to the Senior Tax Assistant position solely on the ground that she was not present in feeder cadre of Kolkata zone on 18.12.2013, in spite of the fact that the applicant was in the feeder cadre/post before 18.12.2013. 3.3 Learned Counsel for the applicant further submits that inclusion of the sentence that "The official should have been in the Feeder Cadre of that particular zone before 18.12.2013" is contrary to the provision of para 3.1.3 of DoP&T OM dated 31.12.2010 and clause 2 (ii) of the ICT Circular dated 27.10.2011. The aforesaid clause of 'Particular Zone' is contrary to the condition of Inter-Commissionerate Transfers of the applicant which was made pursuant to the ICT Circular dated 27.10.2011 vide Clause 2(ii). 3.4 Learned Counsel for the applicant submits that in order to implement para 3(a) of Board's clarification dated 06.01.2021 for promotion/ regularization to the grade of Executive Assistant, the respondents conducted a DPC on 15.02.2023 after which, by order dated 20.02.2023, the employees who had joined in Kolkata zone prior to 18.12.2013 on ICT and completed three years of regular service as on 01.04.2015 were promoted/regularized with effect from 01.04.2015 by counting their past service rendered in the previous zones whereas the applicant who had joined on 07.02.2014 in Kolkata zone on ICT and also completed qualifying regular service of more than three years as on 01.04.2015 has not been 6 OA 281/2023 granted promotion/regularization to the grade of EA w.e.f. 01.04.2015 in violation of the judicial pronouncements as well as the DoP&T OM. 3.5 Learned Counsel for the applicant submits that the respondents erred in law in not considering the judgments referred to by the applicant on the issue of counting of past service for eligibility of promotion. Learned Counsel cited the judgment of the Hon'ble Apex Court in the case of Prathibha Rani & Ors. Vs. Union of India & Ors. in Civil Appeal No. 3792 of 2019 in this regard.
4. Per contra, Learned Counsel for the respondents submits that the post of Senior Tax Assistant (STA) and Deputy Office Superintendent (DOS) were merged and re-designated as Executive Assistant (EA) w.e.f. 18.12.2013 by Cadre-restructuring (CR) notified by the Board vide letter dated 18.12.2013. The Recruitment Rule for the post of EA was notified on 28.09.2015. Eligibility service was three years as TA for promotion to STA as per RR of STA, 2003. The eligibility service is ten years as TA for promotion of EA as per RR of EA dated 28.09.2015.
4.1 Learned Counsel for the respondents submits that the clarifications were required regarding applicability of Recruitment Rule for filling of vacancies arising between 18.12.2013 (Date of CR) and 28.09.2015 (date of RR for EA). Clarification was issued by the Board on 13.11.2020 wherein it was clarified that any promotion in vacancies on or after 18.12.2013 but up to 27.09.2015 should be to the post of EA only and should refer to DoP&T guidelines of 2010 and all vacancies in EA cadre that arose prior to notification of RR of EA 2015 can be filled up as per qualifying service of RRs of STA 2003/DOS 2009. In the said clarification dated 13.11.2020, attention was drawn to para 3.1.3 of the said DoP&T OM dated 31.12.2010 which reads as follows :-
7 OA 281/2023
"Where the eligibility service for promotion prescribed in the existing rules is being enhanced (to be in conformity with the guidelines issued by this Department) and the change is likely to affect adversely some persons holding the feeder grade posts on regular basis, a note to the effect that the eligibility service shall continue to be the same for persons holding the feeder posts on regular basis on the date of notification of the revised rules, could be included in the revised rules."
Further clarification was issued by the Board (CBIC) as Clarification No. 1 of 2021 dated 06.01.2021 wherein at para 3(a), it has been clearly spelt out that benefit of three years qualifying service is to be extended to the officials who had been in the feeder cadre of that particular zone before 18.12.2013. 4.2. Learned Counsel for the respondents submits that as per Board's Circular dated 27.10.2011, the applicant opted for ICT. On the basis of such prayer the applicant was posted in Kolkata Zone on 07.02.2014, i.e., after 18.12.2013, her claim to benefit of three years of eligibility service for promotion to the post of EA in terms of para 3.1.3 of the aforementioned DoPT OM dated 31.12.2010 is legally not tenable. The eligibility service for promotion to EA as per new RR dated 28.09.2015 is ten years. The Board, vide letter dated 29.12.2022, has granted 'One Time Relaxation' in the RR of EA for vacancy year 2022 and eligibility service has been relaxed to six years. The benefit of six years of qualifying service has been extended to the applicant, considering her past service rendered in Mumbai Zone. Para 3.1.3 of the DoP&T's OM dated 31.12.2010 has categorically mentioned that "..... the eligibility service shall continue to the same for the persons holding the feeder posts on regular basis...." Thus, to get the benefit of protection clause extended under para 3.1.3 of the said OM dated 31.12.2010, a Tax Assistant should have been in the feeder post before 18.12.2013.
8 OA 281/20234.3 Learned Counsel for the respondents submits that the cadres are de- centralised and every CCA has to promote the officers from the feeder grade within the jurisdictional limit of that particular zone on crucial date to be reckoned, to be eligible for protection clause. Since, the applicant was not in feeder cadre (CCA, Kolkata in this case) on 18.12.2013, she is not entitled to promotion to the post of EA against vacancy year 2015-16 availing benefit of protection clause. The feeder cadre is de-centralised and each CCA has its own feeder cadre. Further, the contents of Board's ICT circular dated 27.10.2011, quoted by the applicant are in reference with counting length of service when they get considered for promotion. The use of the term "Particular Zone" in clarification dated 06.01.2021 is not contrary to the ICT Circular dated 27.10.2011. The two Circulars are mutually exclusive and cover different issues.
4.4 Learned Counsel for the respondents submits that the review DPC conducted on 15.02.2023 has taken note of Board's Clarification dated 06.01.2021 and DoP&T's OM dated 31.12.2010. The applicant was not considered for promotion w.e.f. 01.04.2015 as the applicant was not present in this zone on 18.12.2013 and therefore, the applicant was not entitled to the 'protection clause' as given in para 3.1.3 of OM dated 31.12.2010. The length of service rendered in previous zone has been considered and the applicant has been considered for promotion to the post of EA after completing six years as on 01.01.2022. The applicant herself has admitted that incumbents bearing sl. No. 33 to 41 in Order dated 20.02.2023 have joined Kolkata zone before 18.12.2013, thus these officers were in feeder cadre on 18.12.2013 rendering them eligible for the 'protection clause'.
9 OA 281/20234.5 Learned Counsel for the respondents submits that the case laws referred by the applicant in paragraph 4.14 of the OA, are related to the counting of past service for eligibility for promotion, which are already incorporated in ICT circular dated 27.10.2011 and are not denied. The applicant is not being deprived of counting her past service for promotion. The cadre restructuring and reorganisation of field formations under Central Board of Excise and Customs were notified on 18.12.2013. STA and DOS were re-designated as Executive Assistant w.e.f. 18.12.2013. Para 6 of Board's letter states, "Pending notification of revised Recruitment Rules, wherever required, the newly created/ re-designated posts will be filled up on the basis of extant guidelines of Recruitment Rules, issued by the DoPT." Therefore, it is quite clear that the phrase 'persons holding the feeder post on regular basis on the date of notification' in para 3.1.3 of DoPT's OM dated 31.12.2010 is for the persons who were present in the feeder post on the date of notification of Board's letter on Cadre restructuring i.e., 18.12.2013. The same has been clarified in para 3(a) of CBIC letter dated 06.01.2020.
4.6 Learned Counsel for the respondents submits that each Cadre Controlling Authority shall have its own separate cadre unless otherwise prescribed by the Board or in the Recruitment Rule itself. The promotion as an outcome of a DPC, wherein all the rules, clarifications were not placed before the DPC, the same may be reviewed. Therefore, the contention of the applicant that in some other zones, similarly placed officers have been promoted does not hold good in the eye of law. The only issue involved in the OA is the eligibility of those TAs who were not in the particular zone on the date of cadre re-structuring i.e., 18.12.2013. The clarification dated 06.01.2021 is not contrary to any judicial pronouncement and it is in 10 OA 281/2023 conformity with the DoPT's OM dated 31.12.2010. The representation dated 20.02.2023 of the applicant was forwarded to the Board on 27.03.2023 for consultation and further clarifications, as the issue involved was related to policy decision, while the applicant has preferred the OA prior to disposal of her representation. Review DPC on 15.02.2023 was convened to take corrective measures for various technical aspects of previous DPC's/Review DPCs. Learned Counsel for the respondents submits that Smt. Madhuparna Mondal, whose promotion has been referred to in the OA, was available in this zone before 18.12.2023 whereas the applicant joined in this zone after 18.12.2023. Therefore, the applicant and Smt. Madhuparna Mondal are not similarly circumstanced officers. It is a fact that the applicant was promoted as EA w.e.f. 01.04.2015 vide DPC dated 25.04.2017, but the said DPC has been reviewed by DPC dated 15.02.2023 in the light of clarifications dated 13.11.2020 and 06.01.2021 issued by the Board.
4.7 Learned Counsel for the respondents submits that in view of the aforementioned contentions, the applicant is not entitled to get any relif from this Court.
5. Heard the parties. Perused material on record.
5.1 The applicant joined in Kolkata zone on ICT on 07.02.2014, i.e., after 28.12.2013. Earlier vide their order dated 01.05.2017, the respondents had granted her promotion as STA w.e.f. 01.04.2015 based on the available instructions on the subject at the time of issue of the promotion order. Subsequently, basing their decision on a clarification in CBEC letter dated 06.01.2021, a review DPC was held and her promotion was made effective from 15.02.2023.
11 OA 281/2023Para 2(ii) of CBEC memorandum dated 27.10.2011 in reproduced below :-
"2. (i).............................
(ii) The transferee will be placed below all officers appointed regularly to that post/grade on the date of his/her appointment on transfer basis in terms of para 3.5 of DoP&T's OM dated 03.07.1986. In other words, such a transferee will be junior to those regularly appointed officers prior to his/her transfer. However, such transferred officer will retain his/her eligibility of the parent Commissionerate for his/her promotion to the next higher grade, etc. ....................."
5.2 Cadres in CBEC were restructured on 28.12.2013. However, Recruitment Rules for the post of STA/EA were notified on 28.09.2015. The applicant was initially promoted w.e.f. 01.04.2015 on the basis of Recruitment Rules of 2010 which were considered valid before the promulgation of Recruitment Rules for STA on 28.09.2015. Subsequently, vide letter dated 13.11.2020, respondents' action granting promotion to the applicant was validated. Para 2 of the letter of CBEC dated 13.11.2020 is quoted below :-
"........................
2. It is directed, as under, on the applicability of Recruitment Rules (RRs) for promotion of EA cadre :-
(a) The post of STA/DOS were in existence prior to 18.12.2013, i.e., upto 17.12.2013. Any pre-cadre vacancy i.e., vacancies arising out of the grade of STA and DOS upto 17.12.2013 were to be filled by the RRs in force on the date on which vacancy arose, i.e., RR of 2003 for STA and RRs of 2009 for DOS.
(b) Post Cadre restructuring i.e., from 18.12.2013 and up to the date of notification of RR of EA i.e., 28.09.2015 (intervening period between date of issue of Cadre restructuring order and date of notification of RRs of EA 2015), the cadre restructuring order provides that DoPT's guidelines on RRs dated 31.12.2010 be used for filling up redesignated posts. Thus, DoPT guidelines on RRs are to be operated for convening DPC/Review DPC for all vacancies arising between 18.12.2013 to 27.09.2015. Attention is drawn specifically to Para 3.1.3 of DoPT guidelines on 'protection clause' in this regard. The provision in cadre restructuring order mentioned above read together with para 3.1.3 of DoPT guidelines implies that those in feeder cadre on 18.12.2013 can be promoted as EAs as per qualifying service of old RRs.
(c) Post notification of RR for the Grade of EA 2015 i.e., from 28.09.2015, any vacancy in the grade of EA would be filled as per the provisions of RRs of EA notified on 28.09.2015.
........................."
12 OA 281/2023It is seen from para 2(b) above that during the period prior to 28.09.2015, DoPT guidelines dated 31.12.2010 were to be used for filling up the redesignated post as per cadre restructuring order. Eligibility criteria for promotion to the post of STA which was redesignated as EA after restructuring of the cadre as per RR of 2003 are as follows :-
"Promotion :
Tax Assistants with 3 years of regular service in the grade and have passed the department examination as specified by the Competent Authority from time to time, in computer application and relevant procedures.
Note : If a junior person is considered for promotion on the basis of his completing the prescribed qualifying period of service in that grade, all persons senior to him in the grade shall also be considered for promotion, notwithstanding that they may not have rendered the prescribed qualifying period of service in that grade but have completed successfully the prescribed period of probation."
Though as per DoP&T instructions dated 31.12.2010, the residency period for promotion to STA (GP- Rs. 4200) was raised to ten years, para 3.1.3 of the said OM made provisions for relaxation in the case of employees who were in feeder post on the date of notification of revised rules framed in accordance with the guidelines given in DoP&T OM dated 31.12.2010. Para 3.1.3 of DoP&T guidelines on framing/ amendment/ relaxation of Recruitment Rules circulated vide OM dated 31.12.2010 is as below :-
"3.1.3 Where the eligibility service for promotion prescribed in the existing rules is being enhanced (to be in conformity with the guidelines issued by this Department) and the change is likely to affect adversely some persons holding the feeder grade posts on regular basis, a note to the effect that the eligibility service shall continue to be the same for persons holding the feeder posts on regular basis on the date of notification of the revised rules, could be included in the revised rules."
The applicant joined as Tax Assistant, i.e., the feeder grade for promotion to the post of STA on 31.08.2010, i.e, before 31.12.2010. Therefore her case is covered by the abovequoted provision.
13 OA 281/2023
A combined reading of all the above quoted instructions leave no scope for doubt regarding the applicant's eligibility for promotion to the post of STA on completion of three years of service from her date of appointment as Tax Assistant.
5.3 The applicant has been denied promotion from 01.04.2015 on the basis of a clarification dated 06.01.2021 issued by CBEC. Para 3 of CBEC letter dated 06.01.2021 reads as follows :- (emphasis supplied) "3. Therefore, it is once again reiterated that the benefit of three years qualifying service in terms of para 3.1.3 of DoPT guidelines of 2010 is to be extended strictly subject to fulfilment of the following conditions :
a) The official should have been in the feeder cadre of that particular zone before 18.12.2013.
b) The official should have completed three years qualifying service before EA RRs of 2015 came into effect.
c) There were vacancies in EA cadre during the intervening period between 18.12.2013 and 27.09.2015."
Admittedly, the applicant was not in Kolkata Zone on 18.12.2013. The applicant has objected to the stipulation in the abovequoted para on the ground that it is contrary to CBEC's OM dated 27.10.2011 as well as in contravention of settled preposition of law. Respondents have justified their stand on the ground that cadre of STA/EA is not centralised and is confined to a particular zone controlled by the Cadre Controlling Officer of that zone. Since the applicant was in Mumbai zone on 18.12.2013, she cannot be considered to be in the feeder post for promotion to STA cadre of Kolkata zone on the crucial date.
5.4 In our considered opinion, cadres have been distributed over different zones for administrative convenience. Even though the respondents have painstakingly made the point that the applicant's past service has not been 14 OA 281/2023 ignored while considering her case, the net effect of denying her promotion on the ground that she was not in Kolkata zone on 18.12.2013 is that she has lost the benefit of her past service rendered in Mumbai zone. Denying the benefit of the protection clause in respect of residency period as per para 3.1.3 of DoP&T guidelines of 2010 to an employee merely because she was posted in a different zone albeit in the same grade flies in the face of principle of natural justice arising out of a pedantic interpretation of the organisational structure. We are in agreement with the Learned Counsel for the applicant that this clarification is contrary to the decision of the CBEC conveyed by its OM dated 27.10.2011. This decision was arrived at after due deliberation by CBEC on the various judicial pronouncements on the issue. This OM quoted supra clearly states that the past service rendered in the earlier place of posting will be considered for the purpose of promotion. In fact, in order to implement this decision, CBEC also approved inclusion of junior-senior clause in the same OM. Also, till the clarification dated 06.01.2021 was issued, the respondents themselves had treated feeder grade as that of Tax Assistant and not as that of Tax Assistants posted in Kolkata zone on 18.12.2013.
We reproduce below para 3 of the judgment of the Hon'ble Supreme Court in Prathibha Rani & Ors. vs. Union of India & Ors. vide Civil Appeal No. 3792 of 2019 cited by the applicant :-
"3. The aforesaid issue is no more res integra in view of the judgment of this Court in the case of Union of India & Ors. vs. C. N. Ponnappan (1996) 1 SCC 524 where this very issue was examined in the factual context of the same department as under :
"The service rendered by an employee at the place from where he was transferred on compassionate grounds is regular service. It is no different from the service rendered at the place where he is transferred. Both the periods are taken into account for the purpose of leave and retiral benefits. The fact that as a result of transfer he is placed at the bottom of the seniority list at the place of transfer does not wipe out his service at the place from where he was transferred. The said service, being regular service in the grade, has to be taken into account as part of 15 OA 281/2023 his experience for the purpose of eligibility for promotion and it cannot be ignored only on the ground that it was not rendered at the place where he has been transferred. In our opinion, the Tribunal has rightly held that the service held at the place from where the employee has been transferred has to be counted as experience for the purpose of eligibility for promotion at the place where he has been transferred.
..............
5. Thus, it is quite clear that in so far as issue of eligibility of promotion is concerned, the service rendered in the previous region, prior to transfer on compassionate ground, will be counted towards service for eligibility for consideration of such promotion. That it is a non-transferable job, makes no difference on this aspect as service is rendered in the same cadre."
Part 3(a) of the clarification dated 06.01.2021 issued by the CBEC is not in conformity with the spirit of ratio laid down by the Hon'ble Apex Court.
On her promotion w.e.f. 01.04.2015, the applicant was assigned a seniority. This seniority is sought to be disturbed by the impugned order after several years. Hon'ble Supreme Court has made a declaration of law to the effect that settled seniority cannot be unsettled after a considerable period. The action of the respondents in reassigning the seniority of the applicant by regularising her as EA with effect from 20.02.2023 instead of from 01.04.2015 is unsustainable also on account of being contrary to the settled preposition of law regarding unsettling of settled seniority.
5.5 In view of the discussions above, in our considered opinion, the impugned para 3(a) of CBEC letter dated 06.01.2021 stipulating that an employee had to be in the feeder grade in particular zone on 28.12.2013, recommendations of the Review DPC held on 15.02.2023 and the promotion/regularisation order dated 20.02.2023 in so far as these relate to the applicant, are bad in law as far as their implications for the applicant is concerned. The impugned para 3(a) of the letter dated 06.01.2021, 16 OA 281/2023 recommendations of Review DPC dated 15.02.2023 and the letter dated 20.02.2023 qua the applicant are accordingly set aside.
Respondents are directed to restore the promotion of the applicant to the post of Executive Assistant (EA) w.e.f. 01.04.2015. Orders to this effect will be issued by the respondents expeditiously not later than 60 days from the date a copy of this order is received in their office.
8. OA stands disposed of. No costs.
(Suchitto Kumar Das) (Jayesh V. Bhairavia) Administrative Member Judicial Member sl