Central Administrative Tribunal - Delhi
Manish Kumar Gautam And Others vs Central Board Of Indirect Taxes A& ... on 30 January, 2025
Item No.60 (Court - 5) O.A. No.2342/2023
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.2342/20
/2023
Reserved on: 20.01.2025
Pronounced on: 30.01.2025
Hon'ble Mr. Manish Garg,, Member (J)
Hon'ble Dr. Anand S Khati, Member (A)
1. Manish Kumar Gautam (aged about 35 years)
S/o Sh. Khem Chand,
Chand Working at CCA, Delhi Zone
Zone,
R/o 137, Khera Khurd, Delhi-110082
Delhi 110082.
2. Vattan Dhiman (aged about 37 years)
years), S/o Sh.
Narender Dhiman Working at CGST Delhi
Delhi-North,
Delhi Zone R/o 1373A, Pana Mamurpur, Narela,
Delhi-Zone
New Delhi-110040.
Delhi
3. Tarun Kumar (aged about 40 years)
years), S/o Late
Sh.Rambir Working at CCA Delhi
Delhi-Zone R/o H.No.
1315, Sector-4,
Sector 4, R.K.Puram, New Delhi
Delhi-110022.
4. Megha
Megha Goyal (aged about 36 years) D/o Late
Sh.Madhu Sudan Agarwal Working at Appeals
Appeals-2
Commissionerate R/o L2 Block/112A, Kalkaji DDA
Flats, Delhi-110019.
Delhi
5. Sumit Dabas (aged about 33 years) S/o
Sh.Devender SinghWorking at Airport Terminal
Terminal-3,
Delhi R/o H.No.290-291, Pocket--2, Sector 25,
Delhi,
Rohini, New Delhi-110085.
Delhi
6. Pankaj Nain (aged about 38 years)
years), S/o Sh.Ram
Prasad Working at CCO, Delhi-Zone
Prasad, Zone, R/o C 346,
Ganga Nagar, Meerut, Uttar Pradesh
Pradesh.
Page 1 of 39
Item No.60 (Court - 5) O.A. No.2342/2023
7. Dhruv (aged about 39 years),
years) S/o Sh. Bhag Chand
Working at CGST Delhi-East,
East, Delhi Zone
Zone, R/o Flat
No.2081, SBI Enclave, H Block, Vikas Puri, New
Delhi
Delhi-110018.
8. Jitender Nagar (aged about 37 years)
years), S/o Sh.
Surender Nagar,
Nagar Working at Nacin Faridabad
Faridabad, R/o
House No.83, Village Kalda, Post Kachera, Dist. G.B
Nagar, UP.
9. Nitish Mourya (aged about 35 years)
years), S/o
Sh.Narendra Kumar,
Kumar Working at Delhi Audit
Audit-2,
Delhi
Delhi-Zone R/o Sector-7,
7, RK Puram, Qtr No.536,
New Delhi-110022.
Delhi
10. Yogesh (aged about 35 years),
years), S/o Suresh Chand,
Working at Delhi Audit-2,
Audit 2, Delhi Zone
Zone, R/o House
No.63, Double Storey, Tilak Vihar, Tilak Nagar, New
Delhi
Delhi-110018.
11. Joginder (aged about 39 years)
years), S/o Sh.Balle Ram,
Working at CGST Delhi-North,
Delhi North, Delhi Zone
Zone, R/o
Mahawati, Tehs - Samakha, Dist. Panipat, Haryana -
132102.
12. Munish Sharma (aged about 35 years), S/o
Narain Dutt Sharma,
Sharma Working at CGST, Panchkula
R/o Flat No.201, GHS-14,
GHS Sector-27,
27, Panchkula,
Haryana
Haryana-13411.
13. Noushin Fatima (aged 35 years)
years), D/o Sh.Md Kafil
Ahmad Working at ACC Import R/o 494, L Pocket,
Ahmad,
Sarita Vihar, Delhi-110076.
Delhi
...Applicants
(By Advocate: Mr. Ajesh Luthra annd Ms. Sriparna Chatterjee)
Versus
Page 2 of 39
Item No.60 (Court - 5) O.A. No.2342/2023
1. Union of India, Through Secretary
Ministry of Finance, North Block, New
Delhi
Delhi-110001.
2. The Central Board of Indirect Taxes &
Customs, Through its Chairman North
Block, New Delhi-110001.
Delhi
3. The Principal Chief Commissioner
(Cadre Controlling Authority) Delhi GST
Zone, C.R. Building, I.P. Estate, New
Delhi
Delhi-110002.
4. Ketan Yadav,
Yadav Date of Joining
02.06.20216
02.06.20216.
5. Hitesh Kumar Alwary Date of Joining
17.04.2017 (Service to be effected through
17.04.2017,
Respondent No.3) .
...Respondent
(By Advocate: Ms. Mr. Pradeep Kumar Sharma
Sharma)
----
Page 3 of 39
Item No.60 (Court - 5) O.A. No.2342/2023
ORDER
Hon'ble Mr. Manish Garg, Member (J):
(J):-
1. In the present Original Application, filed under Section 19 of the Administrative Tribunal Act, 1985, the applicant applicants have prayed for the following relief(s):
"(a)
(a) Pass an order or direction directing the Respondents to consider the Applicants for promotion to the post of Executive Assistant by including their names in the zone of consideration calling for vigilance clearance report of the applicants after holding that the existing zone of consideration, on the basis of which, the letter dated 23.05.2023 has been issued, is is not in accordance with law; and/or
(b) Pass any other order or orders that may deem fit in the circumstances of the case."
case.
1.1 In Writ petition No. 7559/2024 by virtue of Consent Order dated 23.07.2024,, while remanding the matter to the Tribunal, the Hon'ble 'ble High Court observed as under:
under:-
"3. Further, perusal of the record reveals that on the last date i.e. 24.05.2024 learned counsel for the petitioners sought time to obtain instructions as to whether any person who was not a Tax Assistant as on 28.09.2015, has been granted promotion as an Executive Assistant with 28.09.2015, only six years of his service by way of relaxation of the Central Excise & Customs Department Executive Assistant (Group (Group-B Non-Gazetted posts) Recruitment Rules, 2015 and that too after passing of the impugned order. In compliance of the same, an affidavit has been filed wherein in para 2 it has been mentioned that the respondents herein are governed by Central Excise and Customs Department Executive Assistant (Group B Non Non- Gazetted posts) Recruitment Recruitment Rules, 2015 dated 28.09.2015 which do not provide for merger of directorates and the same has been erroneously directed by the ld. Tribunal vide the impugned order. In the said para it has also been stated that while the respondents herein are govern governed by the aforementioned Rules and not by Central Board of Indirect Taxes and Central Board of Indirect Taxes and Customs Directorates Executive Assistant (Group "B", Non Gazetted, Ministerial Posts) Recruitment Rules.
4. In view of above, as agreed by learned learned counsel for the parties, we hereby remand the case back to learned Tribunal with a direction to decide the Original Application afresh after giving opportunities to both the parties."Page 4 of 39
Item No.60 (Court - 5) O.A. No.2342/2023
2. Learned counsel for the applicant applicants argued that the cadre restructuring structuring was given effect to on 28.09.2015 and the nomenclature of the STA was changed to Executive Assistant. Applicants herein were Tax Assistants as on 28.09.2015 working in various zones zone other than Delhi.
2.1 Learned counsel drew our attention to the letter dated 29.12.2022, whereby the Govt. took a conscious decision regarding one time relaxation in Recruitment Rules for the post of Executive Assistant in Central Central Board of Indirect Taxes and C Customs (CBIC) field formation, Dept. of of Revenue, Ministry of finance. The same reads as under:-
under:
"Subject: One Time Relaxation in Recruitment Rules for the post of Executive Assistant in Central Board of Indirect Taxes and Customs (CBIC) field formations, Dept. of Revenue, Ministry of Finance -
regarding.
Sir/Madam, I am directed to state that, in continuation of Board's earlier letter of even number dated 23.12.2022 on the above mentioned subject, the approval of Competent Authority has been now been accorded to consider those Tax Assistants who were in position as on the date of notification of RRs of EA Assistants (field formations) in 2015 i.e. 28.09.2015 and who have completed more than 06 years of regular service as on 01.01.2022, for filling up vacancies of Executive Assistant during the vacancy year 2022, as approved by DOP&T and UPSC.
2. In this regard, all the Cadre Controlling Authorities (CCAs) under CBIC field formations are requested to implement the one one-time relaxation in qualifying service for promotion from Tax Assistant to Executive Assistant as per above relaxation in Qualifying service in the existing RRs of EA notified vide G.S.R. 741 (E) dated 28.9.2015 and amended vide G S.R. 135 (E) dated 17.2.2017 and G.S.R. 657 (E) dated 26.8.2022, as applicable.
3. I am also directed to state that the Board has undertaken several measures Mission Mode for filling up of vacant posts in a time bound manner. Instructions have already been issued to all CCAs to initiate preparatory work for conducting DPCs in elation to the OTR proposal. Accordingly, all CCAs, should do the needful to carry out PCs on TOP PRIORITY, and report the resultant promotions to DGHRD, along with category wise breakup, at the earliest. The consequential DR vacancies in Page 5 of 39 Item No.60 (Court - 5) O.A. No.2342/2023 TA cadre with horizontal and vertical reservation breakup, also should be communicated to DGHRD."
2.2 Learned counsel for the applican applicants stated that the relaxation was made only to those who joined on or before 28.09.2015. Regarding the aforesaid a clarification dated 15.05.2023 was issued, which reads as under:-
under:
"Subject: One Time Relaxation (OTR) in Recruitment Rules for the post of Executive Assistant (EA) in Central Board of Indirect Taxes and Customs (CBIC) field formations, Dept. of Revenue, Ministry of Finance -
regarding regarding.
Sir/Madam, I am directed to invite a reference to Board's letters dated 17.01.2023 and dated 25.01.2023 on the above subject and to state as follows:
2. It has been decided by competent authority that
(i) OTR for EA has to be read harmoniously wi with the provisions of RRs of EA, including Senior Junior clause. In case a junior is eligible under OTR, his / her seniors also be considered as per senior junior clause, provided such a senior has a minimum of 4 years qualifying service as on 01.01.2022 (reducing (reducing two years from the six years qualifying service with which the junior is being promoted).
(ii) All those who joined in TA grade, in any field formation of CBIC, on or before 28.09.2015 to be considered eligible for OTR. In case of ICT transferees who joined in TA grade initially on or before 28.09.2015 and got transferred to another zone after 28.09.2015, the current zone where they are posted should consider them under OTR, duly counting the length of service from date on which they joined as TA initially in the previous zone.
3. All CCAs are requested to do the needful based on the above clarification and report details of promotions made to DGHRD (HRM (HRM-II) within a month of issue of this letter. Where CCAs have carried out initial DPCs to give effect to OTR as per Board's earlier letters, review DPCs may be carried out to give effect to the above decision contained in para 2.
4. This issues with the approval of competent authority Hindi version will follow."
2.3 Learned counsel relied and referred red to promotion criteria to the post of Executive Assistant, which reads as under:
under:-
"Promotion:
Promotion:
Tax Assistant Assista in the Pay Band-1, 1, Rs. 5200 5200-20200 with grade pay of Rs.
2400/ with 10 years of regular service in the grade and have Staff passed 2400/-Page 6 of 39
Item No.60 (Court - 5) O.A. No.2342/2023 the departmental examination as specified by the competent authority from time to time.
Note 1: Where juniors who have completed their qualifying or eligibility service are being considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying or eligibility service by more than half of such qualifying or eligibility service or two years, whichever is less and have successfully completed the probation period for promotion to the next higher grade al along with their juniors who have already completed such qualifying or eligibility service.
Note 2: For the purpose of computing minimum qualifying service for promotion, the service rendered on a regular basis by an officer prior to 1.1.2006 or the date from from which the revised pay structure based on the 6th Central Pay Commission recommendations has been extended, shall be deemed to be service rendered in the corresponding grade pay or pay scale extended based on the recommendations of the pay commission."
2.4 Learned counsel el for the applicant further dre drew our attention to the order dated 23.05.2023 calling for vigilance clearance of officials/ Tax Assistants who were not in position as on 28.09.2015 28.09.2015, and who have been placed above the applicants herein. These 170 persons joined the services after 28.09.2015. H However, they have been assigned seniority on the basis of decision rendered in the case of Union of India & Ors vs. N.R. Parmar Parmar. He further relied upon the order dated 30.09.2020 rendered by this Tribunal in OA No. 1178/2018.
2.5 During the intervening period, i.e., pronouncement of judgment dated 19.09.2023 and order dated 23.07.2024 in W.P. (C) No. 7559/2024 passed by the Hon'ble High Court of Delhi, promotion order dated 18.10.2023 were issued issued, which is subject to outcome of the decision in the present OA. 2.6 The office of the Principal Chief Commissioner of Central Goods & Services Tax (Delhi Zone) had initiated the process of the Page 7 of 39 Item No.60 (Court - 5) O.A. No.2342/2023 promotion of Tax Assistants to the post of Executive Assista Assistants (EA). Vide a communication dated 23.05.2023, Vigilance Clearance Certificate along with APARs and dossiers of 228 employees were called for from the subordinate offices. The apprehension of the applicants is that on account of non adherence to the rules rules and instructions, they may be denied their legitimate right of consideration for promotion promotion, as the respondents have extended the scope of the zone of consideration. 2.7 The applicants are working in the feeder category i.e., Tax Assistant and joined the the Delhi Zone through Inter Commissionerate Transfer (ICT) with the respondents with effect from 2016 onwards. There is another category of Senior Tax Assistant which was re-designated re designated with effect from 28.09.2015. Now the next channel of promotion is Executive Executive Assistant Assistant, to which both the categories are eligible. Now the claim between the applicants and the private respondents is as to who will march over whom. For this, learned learned counsel Mr. Ajesh Luthra drew our attention to para 1 of pages 31 and 32 of the paper book which reads as under ::-
"1.....................the approval of the competent authority has been now been accorded to consider those Tax Assistants who were in position as on the date of notification of RRs of EA (field formations) in 2015 i.e. i.e., 28.09.2015 and who have completed more than 06 years of regular service as on 01.01.2022, for filling up vacancies of Executive Assistant during the vacancy year 2022, as approved by DoP&T and UPSC."
2.8 He has further read out para 2 (i) and (ii) of th the department clarification which is at pages 33 and 34 34, which reads as under:-
"2. It has been decided by competent authority that Page 8 of 39 Item No.60 (Court - 5) O.A. No.2342/2023
(i) OTR for EA has to be read harmoniously with the provisions of RRs of EA, including Senior Junior clause. In case a ju junior is eligible under OTR, his/her seniors also be considered as per senior junior clause, provided such a senior has a minimum of 4 years qualifying service as on 01.01.2022 (reducing two years from the six years qualifying service with which the junior is being promoted).
(ii) All those who joined in TA grade, in any field formation of CBIC, on or before 28.09.2015 to be considered eligible for OTR. In case of ICT transferee(s) who joined in TA grade initially on or before 28.09.2015 and got transferred to another zone after 28.09.2015, the current zone where they are posted should consider them under OTR, duly counting the length of service from date on which they joined as TA initially in the previous zone.
zone."
2.9 He further drew our attentionn to the erstwhile seniority list dated 27.03.2023 where the names of the applicants are reflected at Sl. No. 213 onwards after Mr. Munish Sharma and Mr. Pankaj Nain onwards. This case has a chequered history as earlier also one Mr. Surender Singh and Ors. filed OA No. 1178/2018 where wherein a similar issue has been raised at page 68 para B. The same is reproduced herein below :-
"B. To declare the action of the respondents in not preparing zone of consideration for promotion to the post of Superintendent Cent Central Excise out of eligible officers in feeder category as per RRs as illegal and direct the respondents to prepare the zone of consideration for promotion to the aforesaid post of Superintendent Central Excise amongst eligible officers (including applicants) applicants) having the eligible service as per rules and DOP&T instructions and consider their claim for promotion to the post of Superintendent Central Excise w.e.f 1st April 2018 with all consequential benefits."
2.10 This Tribunal after considering the rival co contentions finally decided the O.A. No.1178/2018 with the following directions ::-
"12. In view of the aforesaid, the present OA is disposed of with direction to the respondents to consider the claim of the applicants in view of their own letter dated 26.05.2020, 26.05.2020, 14 OA 1178/2018 under reference, in accordance with relevant Rules and instructions on the subject, as expeditiously as possible and in any case, within three months from the date of receipt of copy of this order."Page 9 of 39
Item No.60 (Court - 5) O.A. No.2342/2023 2.11 Thereafter, the CP was also lso filed which has been decided with an observation that the petitioners have been promoted by considering the zone of consideration in terms of the Tribunal's order in the OA.
2.12 Now, the private respondents who have joined the respondents service from 2016 onwards directly in the Delhi Zone and they are reflected, reflected except from sl. no. 2, from Sl. No. 1 to 171 are also claiming that like their juniors who joined the Delhi zone/field after 2016, 2016 they are also entitled to be considered on completion of four fo years of service.
3. Vide Order dated 18.11.2024, Mr. Ankur Chhibber, learned counsel for private respondents sought discharge from the matter. The private respondents filed the counter affidavit and thereafter, have stopped appearing in the matter. The official respondents are led by Mr. Pradeep Kumar Sharma.
Sharma 3.1 It is the contention of the learned counsel for the respondents that initially as per Recruitment Rules dated 16.02.2003 for promotion to the post of Senior Tax Assistant three years of regular service was required,, which reads as under:
"12.
12. Promotion:
Tax Assistant with 3 years of regular service in the grade and have passed the department examination as specified by ththe 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 grace, 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 Page 10 of 39 Item No.60 (Court - 5) O.A. No.2342/2023 prescribed period of probation."
3.2 Thereafter vide notification dated 28.09.2015, an amendment came to be issued in supersession of the Central Excise & Customs Department, Senior Tax Assistant (STA) Recruitment Rules, 2003, wherein the nomenclature of the post has been changed from Senior Tax Assistant (STA) (STA) to Executive Assistant (EA) and the residency period is enhanced from three years to ten years, which reads as under:
"11.Promotion:
11.Promotion:
Tax Assistant in the Pay Band-1, Band 1, Rs. 5200 5200- 20200 with grade pay of Rs.
2400/ with ten years of regular service in th 2400/- the grade and have passed the departmental examination as specified by the competent authority from time to time.
Note: Where juniors who have completed their qualifying or eligibility service are being considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying or eligibility service by more than half of such qualifying or eligibility service or two years, whichever is less and have successfully completed their probation period for promotion to thethe next higher grade along with their juniors who have already completed such qualifying or eligibility service.
Note 2: For the purpose of computing minimum qualifying service for promotion, the service rendered on a regular basis by an officer prior to 1.1.2006 .1.2006 or the date from which the revised pay structure based on the 6th Central Pay Commission recommendations has been extended, shall be deemed to be service rendered in the corresponding grade pay or pay scale extended based on the recommendations of the pay commission."
3.3 Learned counsel forr the respondents further stated that in the RRs, there is a power to relax, which reads as under:
"7.
7. Power to relax:
Where the Central Government is of the opinion that it is necessary or expedient so to do, it may, by order and for reasons to be recorded in writing, relax any of the provisions of these rules with respect to any class or category of persons."
3.4 Learned counsel for the respondents relie relied upon para 5,6 and Page 11 of 39 Item No.60 (Court - 5) O.A. No.2342/2023 8 of the counter reply, which reads as under:
"5. That vide Board's letter F.No. A. 12018/01/2012.AD. III.B dated 17.01.2023, clarification was issued in the matter of One Time Relaxation (OTR) wherein it was clarified that:-
that:
"a. The TAs who were in position in the zone as on 28.9.2015 and completed more than six years of service as on 1.1.22 are eligible to be considered under OTR.
b. The eligibility of ICT officers who joined the zone after 28.09.2015 and the application of senior junior clause with OTR, factoring in such ICT officers,, is under examination and decision, if any, will be conveyed later on.
c. The eligibility of those fulfilling both the elements of OTR, as stated in point (a) above, is clear. Hence, CCAS may hold DPCs to promote those fulfilling the two conditions menti mentioned in point (a) above, carry out promotions and report the promotions on the DPC module of DGHRD, duly mentioning "OTR for EA" in remarks column.
d. CCAs may wait for further orders regarding eligibility of those who joined zone on ICT after 28.09.2015 and applicability of Senior Junior clause as a consequence."
6. That further clarifications were issued by the Board vide letter F. No. A.32018/01/2023 Ad.IIIA dated 25.01.2023 wherein it had been stated A.32018/01/2023-Ad.IIIA that:
that:-
"3. I am directed to convey the following fo for compliance:
(i) CCAs to immediately carry out DPCs, in relation to OTR for EA, promoting all those who qualify the two conditions in para 2(a) of Board's letter dated 17.01.2023 without invoking senior junior clause.
ii) Also such DPCs be carried ou out without waiting for clarification on senior junior clause whether in relation to ICT transferees or in relation to those who are senior due to seniority lists drawn up based on 2014 DOPT OM on inter se seniority (NR Parmar judgment) or compassionate appo appointees or sports quota recruitees etc.
(iii) Whether senior junior clause is applicable along with OTR, in any scenario, will be clarified and accordingly action can be taken by CCAS later. But DPCs and promotions in relation to those who qualify clearly as per Board's letter dt 17.01.2023 be carried out immediately and data of such promotions as well as resultant DR vacancies in TA cadre be conveyed to DGHRD immediately, as indicated clearly in Board's letter dated 17.01.2023."
*********
8. That in reference to Board letters dated 17.01.2023 and 25.01.2023, a letter F.No. A.12018/01/2012.AD. III.B dated 15.05.2023 has been issued by the Board wherein it has been stated that:
that:-Page 12 of 39
Item No.60 (Court - 5) O.A. No.2342/2023 "i. OTR for EA has to be read harmoniously with the provisions of RRs of EA, including Senior Junior clause. In case a junior is eligible under OTR, his /her seniors also be considered as per senior junior clause, provided such a senior has a minimum of 4 years qualifying service as on 01.01.2022 (reducing two years from the sixx years qualifying service with which the junior is being promoted).
ii. All those who joined in TA grade, in any field formation of CBIC, on or before 28.09.2015 to be considered eligible for OTR. In case of ICT transferees who joined in TA grade initial initially on or before 28.09.2015 and got transferred to another zone after 28.09.2015, the current zone where they are posted should consider them under OTR, duly counting the length of service from date on which they joined as TA initially in the previous zone.
zone."
3.5 It was further clarified that where CCAs have carried out initial DPCs to give effect to OTR as per Board's earlier letters, review DPCs may be carried out to give effect to the abov above decision contained in para 2.
3.6 It is the contention of the learned counsel for the respondents that vide Boards letter dated 15.05.2023, it is very clear that in case a junior is eligible under OTR, his/her senior (Tax Assistant) who has completed four years year of regular service as on 01.01.2022 shall also be considered considered for the promotion to Executive Assistant and in this case, pre-
pre condition of in-service service as on or before 28.09.2015 is not mandatory for seniors who joined after 28.09.2015 due to applicability of senior-junior senior clause.
3.7 He further drew attention to the recent Circular dated June 2024, regarding Senior/Junior Clause, which reads as under:
"(ii)
(ii) Regarding Sr-Jr Sr clause: The OTR approved by DoPT and UPSC is with reference to the qualifying service prescribed for promotion of TA to EA (viz 06 years in place place of 10 years prescribed in the RRs). The Senior Junior clause is provided as a Note in the Recruitment Rules, 2015 of Executive Assistant below the qualifying service condition for promotion of TA to EA. Hence, after applying the OTR condition in respec respect of qualifying Page 13 of 39 Item No.60 (Court - 5) O.A. No.2342/2023 service, if any junior TA becomes eligible for OTR, thereafter, senior junior clause becomes applicable. The Sr-Jr Sr Jr clause provides a relaxation of up to two years in the service with which a junior is getting considered for promotion under OTR (viz. 06 years with which junior is getting considered minus 02 years as per Sr-JrSr Jr clause) clause)- thereby senior with 04 years (irrespective of date of joining), figuring above junior with 06 years who was in service as on 28.09.2015, is eligible for OTR, re read with Sr-Jr clause, as detailed in Board letter dated 15.05.2023."
3.8 He further highlighted that the private respondents have also placed on record the Establishment Order dated 08.06.2023 pertaining to Pune Zone which is in consonance with One Time Relaxation in terms of Board's letter letters dated 29.12.2022, 17.01.2023, 25.01.2023 and 15.05.2023 read with recruitment rules of Executive Executive Assistant (Group B Non Gazetted Ministerial Post), 2015, wherein the applicants who were appointed after 28.09.2015 were considered and promoted to the grade of Executive Assistant (EA). Similarly vide Estt. Order dated 02.06.2023, Guwahati Zone, vide Estt. Order dated 23.05.2023, Vadodara Zone, vide Estt. Order dated 17.05.2023, Jaipur Zone, vide Estt. Order dated 22.05.2023, Hyderabad Zone and vide Estt. Order dated 31.05.2023, Kochi Zone, Tax Assistants were also promoted to the grade of Executive Assistant ssistant (EA) by applying the same methodology. 3.9 Learned counsel unsel for the respondents relied upon para 11 of the counter reply, which reads as under:
"11. The applicants in the subject OA joined the Department before 28.09.2015 and they are also having 06 years of regular service as on 01.01.2022 or 04 years (reducing two years from the six years qualifying service with which the junior is being promoted) of regular service (in case of application of Senior-Junior Senior Junior clause) as on 01.01.2022. The names of tthe applicants in the subject OA (except Sh. Dhruv and Nitish Mourya) have also been included in the zone of consideration (ZOC) prepared in terms of Board's letter F.No. 10A60/2/2020- 10A60/2/2020 Ad.IIB dated 19.01.2022 and DoP&T Page 14 of 39 Item No.60 (Court - 5) O.A. No.2342/2023 OM No.22011/2/2002-Estt No.22011/2/2002 Estt (D) dated 06.0 06.01.2006 regarding DPC Guidelines Review of Size of Zone of Consideration which at Para (3) provides as under:-
under:
"The size of zone of consideration for promotion by 'selection' as prescribed vide DOPT Ο.Μ. No. 22011/1/90 22011/1/90-Estt.D dated 12th October 1990 read withith O.M. No.22011/1/90 No.22011/1/90-Estt-(D) dated 22nd April 1992 is as under:
No. of Normal size of zone of Extended zone of vacancies consideration consideration for SC/ST 1 5 5 2 8 10 3 10 15 4 12 20 5 and above Twice the number of 5 times the number of vacancies + 4 vacancies Para 3.(i) For vacancies up to (and including) 10, existing provisions relating to normal size of zone of consideration will continue to be applicable.
ii) For vacancies exceeding 10, the normal size of zones of consideration will now be one and the half times the number of vacancies, rounded off to next higher integer, plus three but shall not be less than the size of consideration zone for ten vacancies;
iii) The existing size of extended zone of consideration for SC/ST officers, viz. five times the total number of vacancies, will continue to be applicable."The names of the applicants (except Sh. Dhruv and Nitish Mourya) have been included in the zone of consideration (ZOC) and their names will be considered for promotion by the D DPC subject to the availability of vacancies."
3.10 He further submitted that it has been clarified by the private respondents that the zone of consideration for promotion in the civil services under Union of India is determined in accordance with the DoP&T O.M dated 06/01/2006. As per the mandate of the said O.M, the zone of consideration is 1.5 times the number of vacancies, rounded off to the next higher integer + 3. By following the said formula, in the instant case the zone of consideration for vacancy ancy year 2022 is 150X1.5+3=228. On this point the applicants have not raised any dispute in the OA. He further state stated that a Page 15 of 39 Item No.60 (Court - 5) O.A. No.2342/2023 tentative seniority list was prepared on 23.05.2023 by the Board seeking vigilance clearance and the final seniority list was issu issued on 03.07.2023, which is not under challenge. Hence, the OA is liable to be dismissed at the threshold.
4. In rejoinder to the argument put forth by the learned couns counsel for the official respondents, respondents, the learned counsel for the applicant applicants submitted that respondents respondents cannot seek aid of clarification clarifications issued from time to time to justify their the actions during pendency of present proceedings to defeat the rights of the applicants herein. It is argued that the he respondents are justifying their ir action to support the case of applicant in Delhi Zone by wrongly invoking junior applicants junior-senior clause who were directly appointed or rather joined post 28.9.2015. The OM issued on 29.12.2022 was a well considered decision to grant OTR to persons who were appointed prior to 27.9.2015 irrespective of the zone where they had joined. Even if the junior junior-senior clause is to be applied, applied, the same ought to be applied to persons who were appointed on or before 27.9.2015. No further relaxation is called for. Citing the case of Dhruv (applicant (applicant No.7), he submitted that the said applicant was accorded promotion to the grade of STA under Rules prevalent, prevalent while he was in a Zone other than Delhi. For coming under ICT Zone, Zone not only he had to forego the promotion to STA but was also put below the persons who had been appointed after 28.09.2015. The respondents were not sure with regard to the applicability of senior-junior senior junior clause. Respondent vide Office order Page 16 of 39 Item No.60 (Court - 5) O.A. No.2342/2023 in June, 2024 have further compli complicated the issue during the pendency ency of the Writ Petition as well as present OA. The action on the part of official respondents is unjustified and without any basis. The OA cannot be rejected on technicalities as the seniority list or promotion order dated 18.10.2024 has not been challenged.
5. Having Having gone through the records of the case and submissions urged by the learned counsel for the respective parties, we now examine the issue afresh uninfluenced by earlier order passed by the Tribunal, pursuant to directions passed by the Hon'ble High Court.
6. Point to ponder in present case stems from Board's Letter dated 15.5.2023 , wherein it is the contention of official respondents that in case a junior is eligible eligible under OTR , his /her senior ( Tax Assistant) who has completed four years of regular service as on 01.01.2022 1.2022 shall also be considered for promotion as Executive Assistant and in this case, pre-condition pre condition of in in-service " as on or before 28.09.2015"
28. is not mandatory for seniors who joined after 28.09.2015 9.2015 due to applicability of senior senior-junior clause. In other words, we have to see as to when junior junior-senior clause shall apply.
7. ANALYSIS :
7.1 At the outset, we are of the considered view that there is apparent fallacy without any justification in the argument put-forth by the official respondents respondents to come and say that senior (Tax Assistant) who has completed four years of regular service as on Page 17 of 39 Item No.60 (Court - 5) O.A. No.2342/2023 01.01.2022 1.2022 shall also be considered for promotion to the grade of Executive Assistant, Assistant and in this case, ""pre- condition of in-service as on or before 28.9.2015 is not mandatory" for seniors who joined after 28.9.2015 due to applicability of senior senior-junior clause.
Acceptance of such a submission submission shall run contrary to now well settled law, as the date of appointment is the crucial factor for determining as to when a person is borne in cadre, irrespective of the zone to which the applicants applicant would have joined.
7.2 In CIVIL APPEAL NOS. 8324 8324-8327 OF 2022 [Arising out of Special Leave Petition (Civil) Nos. 30734 30734- 30737 of 2014] titled as AMIT SINGH SIN vs. RAVINDRA NATH PANDEY & ORS. ETC. ETC, the Apex Court observed as under:
under:-
"20. This Court in the case of Pawan Pratap Singh and others vs. Reevan Singh and others(2011) others 3 SCC 267 observed thus:
"44. The Constitution BenchCourt in Direct Recruit ClassOfficers' "
Assn. v. State Maharashtra [(1990) 2 SCC 715 : 1990 SCC (L&S) 339 :
(1990) 13 ATC 348] stated the legal position with regard to inter se seniority of direct recruits and promotees and while doing so, inter alia, it was stated that once an incumbent is appointed to a post according to rules, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation confirmation.
45. From the above, the legal position with regard to determination of seniority in service can be summarised as follows:
seniority
(i)) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.
(ii)) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive ive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions oor otherwise must be consistent with the requirements of Articles 14 Page 18 of 39 Item No.60 (Court - 5) O.A. No.2342/2023 and 16 of the Constitution.
(iii)) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid clas classification and must be traceable to the statutory rules.
(iv)) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so becau because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime."
21. This Court in the said case held that th the effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be. This Court further held that the inter se seniority in a particular service has to be determined as per the service rules. It held that the date of entry in a particular service or the date of substantive appointment is th the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. It further held that any departure therefrom in the statutory rules, executive instructions oor otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution of India. It further held that the seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly expressly provided by the relevant service rules. It held that the seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.
22. A bench of three learned Judges of this Court in the case of P. Sudhakar Rao and others vs. U. Govinda Rao and others others(2013) 8 SCC 693 has approved the law as laid down by this Court in the case of Pawan Pratap Singh and others (supra).
(supra)
23. It is thus clear that the inter se seniority between the promotees and the direct recruits will have to be determined in accordance with the 1992 Rules. The 1992 Rules fix the quota of 67% for direct recruits and 33% for promotees. A "year of recruitment"
recruitment" has been defined to be a period of twelve months, commencing from the first day of July of the calendar year and as such, in the present case, the year of recruitment would be from 1st of July of 1997 to 30th of June 1998."
7.3 The relative seniority of all direct recruits is determined by the order of merit in which they are selected for such appointment on the recommendations of the U.P.S.C. or other selecting Page 19 of 39 Item No.60 (Court - 5) O.A. No.2342/2023 authority, persons appointed as a result of an earlier selection bei being senior to those appointed as a result of subsequent selection. The relative seniority that used to be determined earlier according to the date of confirmation and not the original order of merit, (in case where confirmation was in an order different fro from the order of merit indicated at the time of their appointment), in accord accordance with the general principles of seniority, has been discontinued w.e.f. 4.11.1992 (O.M. No. 20011/5/90 20011/5/90-Estt (D) Dated 4.11.1992). The general principle of seniority, therefore therefore, stands modified to that extent. [Para 2.1 of O.M. No. 22011/7/86 22011/7/86-Estt.(D) Dated 03.07.1986 and para 3 of O.M. No. 20011/5/90 20011/5/90-Estt (D) Dated 4.11.1992] 7.4 In the case of persons who are recruited through a competitive examination, the inter se seniority is determined on the basis of the rank assigned by the Public Service Commission conducting the examination and same cannot be altered altered.(See:
Union of India v. Mohan Lai Capoor, (1973) 2 SCC836 ), S. K. Ghosh vs. Union of India, AIR 1968 SC 1385; Harikishan Singh v. State of Punjab, AIR 1971 SC 1602: SLR 1971 SC 373 Also M.Savithri Savithri v. State of Mysore, 1972(1) Mys LJ 45; Syed Shamim Ahmed v. State, SLR 1981(l)Raj.) 7.5 Seniority is not determined by mere fortuitous reporting for duty earlier and the the date of the joining report; seniority would be determined on the basis of the ranking done by the Selection Bo Body Page 20 of 39 Item No.60 (Court - 5) O.A. No.2342/2023 and as arranged in the roster. (Ref:
( Chairman, Puri Grmaya Bank vs. Ananda Chandra Das, (1994) 6 SCC 301
301). Furthermore, where the selection process has ranked the candidates, merely because a person ranked higher had a later date of joining, though within the stipulated period or extended period of joining granted by the authorities, cannot change the seniority based on performance in the selection. A mere delay in joining, for reasons beyond the candidate's control cannot change his seniority. P. Srnivas v. M. Radhakrishna Murthy, (2004) 2 SCC 459. 7.6 We may also state that birth in the cadre first would automatically accord the seniority over and above those who are automatically appointed ointed at a later date. It has been held so in the case of State of Uttar Pradesh vs. Ashok Kumar Srivastava & Anr. [(2014) 14 SCC 720]. This is important more-so, so, as the amended Rule came into existence w.e.f 28.9.2015. In its wisdom, the Board took a conscious decision to protect the promo promotional avenues of the applicants who had been appointed prior to 28.9.2015 und applicants under the Rules prevalent at that time as a one--time measure, OTR Scheme, was floated floated vide OM dated 29.12.2022 as residency period from three years regular service was increased. 7.7 Now examining junior senior-clause, clause, we draw a reference to decision in R. Prabha Devi & Ors vs Government Of India ( 1988 AIR 902: 1988 SCR (3) 147) wherein the junior senior clause probably for the first time came up for consideration before the Page 21 of 39 Item No.60 (Court - 5) O.A. No.2342/2023 Apex Court.
Court. The issue in said case was tthe promotion of Section officers to Grade I post in C.S.S. Rules made in accordance with the provisions of sub-rule sub (2) of rule 12 of the said Rules framed in 1962. According to the rule, rule the direct recruits were eligible for promotion to Grade I in C.S.S. even though they have not rendered 10 years service, when promotee Section officer officers junior to them are considered for promotion to Grade l. The promotee Section officers had to render 10 years' approved service as Section officer before being considered for promotion to Grade I. This rule had been amended from time to time, the last of which was in 1984 by way of Notification No. 5/9/80 CS. I dated 29th December, 1984 which prescribed 8 years of approved service as Section officer as condition of eligibility for being considered for promotion to Grade I post in C.S.S. This amendment was challenged before the Central Administrative Tribunal which dismissed the applications, holding that the amended rule is valid, just and equitable equitable, and no exception can be taken to it, and that it is not ultra vires of Articles 14 and 16 of the Constitution.
Constituti It was observed :--
"The rule in question which prescribes on uniform period of qualified service cannot be said to be arbitrary or unjust or violative of Articles 14 or 16 of the Constitution. The rule making authority, by the amendment made in 1984, has brought in an uniform eligibility qualification of 8 years' approved service to be rendered by the Section officers officers-both promotees and direct recruits before coming within the zone of consideration for promotion to Grade I. Thus it treats all Section officers equally and there is no discrimination between the Section officers. The directly recruited Section officers are not totally excluded from the zone of consideration for promotion. They will be considered like the promotee Section officers as soon as they have rendered eight years' approved service as Section officers. The eligibility conditions imposed has a nexus to the object sought to be achieved, viz. enlisting experienced officers of proven merit to man the higher posts by way of promotion. [158B;
[158B; 156B 156B-D] Page 22 of 39 Item No.60 (Court - 5) O.A. No.2342/2023 It was further observed that "When qualifications for appointment to a post in a particular cadre are prescribed, the same have to be satisfied before a person can be considered for appointment. Seniority in a particular cadre does not entitlele a public servant for promotion to a higher post unless he fulfils the eligibility condition prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion. Seniority will be relevant only amongst persons eligible. Seniority cannot be substituted for eligibility nor can it over-ride ride it in the matter of promotion to the next higher Post. [157G-H: 158A] The Supreme Court observed:
"15.The rule-making making authority is competent to frame rules laying down eligibility condition for promotion to a higher post. When such an eligibility condition has been laid down by service rules, it cannot be said that a direct recruit who is senior to the Promotees is not required to comply with the eligibility condition and he is entitled to be considered for promotion to the higher post merely on the basis of his seniority. The amended rule in question has specified a period of eight years' approved servservice in the grade of Section Officer as a condition of eligibility for being considered for promotion to Grade I post of CSS. This rule is equally applicable to both the direct recruit Section Officers as well as the promotee Section Officers. The submissionn that a senior Section Officer has a right to be considered for promotion to Grade I post when his juniors who have fulfilled the eligibility condition are being considered for promotion to the higher post, Grade I, is wholly unsustainable. The prescribingg of an eligibility condition for entitlement for consideration for promotion is within the competence of the rule-making making authority. This eligibility condition has to be fulfilled by the Section Officers including senior Direct Recruits in order to be eligible ible for being considered for promotion. When qualifications for appointment to a post in a particular cadre are prescribed, the same have to be satisfied before a person can be considered for appointment. Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfils the eligibility condition prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion. Seniority will be relevant only amongst persons eligible. Seniority cannot be substituted for eligibility nor it can override it in the matter of promotion to the next higher post. The rule in question which prescribes an uniform period of qual qualified service cannot be said to be arbitrary or unjust violative of Article 14 or 16 of the Constitution..... (emphasis supplied) "
7.8 In light of the decision rendered in R. Prabha Devi (supra), vide Office Memorandum dated 25th March, 96 on the Subject Page 23 of 39 Item No.60 (Court - 5) O.A. No.2342/2023 "Revision Revision of guidelines for framing/amendment/relaxation of recruitment rules -- consideration of seniors in cases where juniors are considered".
considered a suitable "Note" came to be inserted in the Recruitment Rules to the effect that seniors who have completed the probation period may also be considered for promotion when their juniors who have completed the requisite service are being considered, that is "To avoid such a situation the following note may be inserted below the relevant service rules/column rules/column in the schedule to the Recruitment Rules. 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/eligi 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 alongwith their juniors who have already completed such qualifying/eligibility qualifying/eligibility service."
Consequently para 2.1.2. of this Department O.M. No.AB No.AB-14017/12/87- Estt. (RR) dated the I 8 March, 1988 will also be amended with the addition of the following sentence after 3 sentence of para 2.1.2 ibid.
"The administrative Ministries/Departments are also empowered to amend all the service rules/recruitment rules to incorporate the "Note" as amended above."
7.9 The O.M. dated 24.09.1997 issued by the DOP&T, wherein the DOP&T once again requested the Ministries "to take a conscious decision to amend the relevant Recruitment Rules/ Service Rules where such a provision has not been incorporated in the light of the foregoing clarification(s). This would help in the maintenance of proper cadre management and obviate the need for seeking relaxation of Recruitment Rules/ Service Rules"
7.10 There cannot be two different yardsticks yardsticks, one for determining eligibility for promotion while promotion are being Page 24 of 39 Item No.60 (Court - 5) O.A. No.2342/2023 made under OTR on the basis of "Seniority "Seniority cum Merit" in terms of one ne time relaxation (OTR)as per Board letter dated 29.12.2022 in the RR's 2015 by reducing the eligibility service in the grade of Tax Assistant from 10 years to 6 years years; while simultaneously by further reducing the eligibility conditions for seniors on the basis of junior/ senior clause to 4 years in terms of NOTE NOTE-1 to RR's ie "Merit Cum Seniority" by applying junior senior clause.
7.11 In Jagdish Prasad vs State Of Rajasthan & Ors decided on 7 July, 2011 (AIR 2011 Supreme Court 3189: 2011 (7) SCC
789), the Hon'ble Apex Court observed as under ::-
"We are not only concerned with promotion or otherwise of any relief to the appellants or any persons in service but we must also ensure that Rules are implemented and selection is made strictly in accordance with such Rules. We also cannot ignore the fact that a Government servant gets a right, (though not indefeasible right), to be considered for promotion to the appropriate post to which he is eligible and entitled, in accordance with law.
In the case of Union of India and Another v. Hemraj Singh Chauh Chauhan and others [(2010) 4 SCC 290] this Court while dealing with somewhat similar situation held as under:
"35. The Court must keep in mind the constitutional obligation of both the appellants/Central Government as also the State Government. Both the Central Government and the State Government are to act as model employers, which is consistent with their role in a welfare State.
36. It is an accepted legal position that the right of eligible employees to be considered for promotion is virtually a part of their fundamental right guaranteed under Article 16 of the Constitution. The guarantee of a fair considerat consideration in matters of promotion under Article 16 virtually flows from guarantee of equality under Article 14 of the Constitution."
It is equally true that the rule of fairness in Government action is an essential feature. However, such fairness has to be foun founded on reasons.
Usually, the providing of Reasons demonstrates the concept of reasonableness but where the statutory rules provide the circumstances and criteria, ambit and methods by which the selection should be governed, they would become the yardstick of fairness. In the case of Manager Page 25 of 39 Item No.60 (Court - 5) O.A. No.2342/2023 Government Branch Press and Anr. v. D.B. Belliappa [(1979) 1 SCC 477], this Court held that the essence of the guarantee under Articles 14 477], and 16 of the Constitution is `fairness founded on reasons'." 7.12 The post of Tax Assistant wa was the feeder grade for promotion to the grade of erstwhile Senior Tax Assistant. 7.13 RR's of STA, 2003: As per Schedule 12, "Tax Assistant with 3 years of regular service in the grade and has passed the departmental examination as specified by the Competent Authority departmental from time to time in computer application application and relevant procedure.
As per Note in Column 12 of RRs of STA, 2003, it has been specified that, "if a junior person is considered for promotion on the basis of his completing the prescribed. qualify 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 I probation."
7.14 RR's of DOS, 2009 : As per Schedule 12, "Senior Tax Assistant with three years regular service in pay band Rs. 93000 93000- 34800/ 34800/-"
7.15 The Cadres in CBEC were restructured on 18.12.2013.
However, Recruitment Rules for the post of STA/EA were notified on 28.09.2015.
7.16 In exercise of the powers conferred by the proviso to Article 309 of of the Constitution and in supersession of the Central Page 26 of 39 Item No.60 (Court - 5) O.A. No.2342/2023 Excise and Customs Department Senior Tax Assistant (Group C posts) Recruitment Recruitment Rules, 2003 and the Department of Revenue, Central Excise and Customs, Deputy Office Superintendent Group 'B' Post Recruitment Rules, 2009, except as respects things done or omitted to be done before such supersession, the following rules regulating the method of recruitment to the post of Executive Assistant in the Central Excise and Customs Department under the control of the Central Board of Excise and Customs in the Department of Revenue, Ministry of Finance were published, namely:
namely:--
"The Central Excise and Customs Department, Executive Assistant (Group 'B', Non-
Non Gazetted posts) Recruitment Rules, 2015.
(1) Name of post - Executive Assistant
(5) Whether Selection post or
Non
Non-Selection post - SELECTION
(6) Age limit for Direct Recruitment - 30 YEARS
(10) Method of Recruitment: Whether - 60% by promotion
by direct recruitment or by promotion/ and 40% by direct
deputation/absorption and percentage recruitment through
of posts to be filled by various methods. Staff Selction
Commission.
(11) Promotion :
Tax Assistant in the Pay Band-1,
Band 1, Rs. 5200
5200- 20200 with grade pay of Rs.
2400/ with ten years of regular service in the grade and have passed the 2400/-
departmental examination as specified by the competent authority from time to time.
Note 1: Where juniors who have completed their qualifying or eligibility service are being considered considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying or eligibility service by more than half of such qualifying or 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 or eligibility service.
Note 2: For the purpose of computing minimum qualifying service for promotion, the service rendered on a regular basis by an officer prior to 1.1.2006 or the date from which the revised pay structure based on the 6th Central Pay Commission recommendations has been extended, shall be deemed to be service rendered in the corresponding grade pay oor pay scale extended based on the recommendations of the pay commission.
commission."
Page 27 of 39 Item No.60 (Court - 5) O.A. No.2342/2023 7.17 .17 In the t case in hand, we are concerned with 60% by promotion quota for the post of EA. The criteria and procedure for promotion as applicable in that particular year, to which the vacancies relate relate, is paramount consideration.
7.18 Clarifications larifications were required regarding applicability of Recruitment Rule for filling of vacancies arising between 18.12.2013 and 28.09.2015 (date of RR for EA). 7.19 A 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 qualifying service of RRs of STA 2003/DOS 2009. The Board Office (CBIC) has issued instruction to all CCAS under F. No. A.32011/03/2015-AD.lll.A A.32011/03/2015 AD.lll.A dated 13.11.2020 with regard to promotion to the grade of Executive Assistant during 18.12.2013 to 28.09.2015. The relevant relevant part of Board's letter dated 13.11.2020 is reproduced below:
"2.
2. It is directed as under on the applicability of Recruitment Rules (RRs) for promotion of EA cadre-:
cadre
(a) The post of STA/DOS were in existence prior to 18.12.2013, i.e., up to 17.12.2 17.12.2013. Any pre-cadre cadre vacancy i.e. vacancies arising out of the grade of STA and DOS up to 17.12.2013were 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 notificationof RR of. EA i.e, 28.09.2015 (intervening period between date of issue of Cadre restructuringorder.and date of notification of RRs of EA Page 28 of 39 Item No.60 (Court - 5) O.A. No.2342/2023 2015), the cadre restructuring order provides that DOPT', guidelines on RRs dated31.12.2010 be used for filling up re re-designated posts. Thus, DOPT guidelines on RRs are to operated for convening DPC/Review DPC forall vacancies arising between 18.12.2013 to 27.09.2015, Attention is drawn specifically to Para 3.1.3 of DOPT gguidelines on 'protection clause' in this regard, The provisionin 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 ot 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."
28.09.2015.
7.20 In the said clarification dated 13.11.2020, attention is drawn to para 3.1.3 of the said DOP&T OM dated 31.12.2010 which reads as follows :-
:
"3.1.3 Where the eligibility service for promotion prescribed in the existing rules is being enhanced (to be in conformity with the guidelines issues 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."
7.21 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 thre three years qualifying service is to be extended to the officials who had been in the feeder cadre of that particular Zone one before 18.12.2013.Para 3 of CBEC letter dated 06.01.2021 reads as follows ::-
"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."Page 29 of 39
Item No.60 (Court - 5) O.A. No.2342/2023 7.22 In Ningma Doma Yolmo vs vs. Central Excise And Customs decided on 21 March, 2024, the Calcutta Bench of this Tribunal while dealing with a challenge challenge, i.e., Clarification No. 1 of 2021 dated 6th January, 2021 issued by the respondents to the extent the same incorporates the aforesai aforesaid Clause of 'Particular Zone' [Clause 3(a)] in violation of the condition of Inter 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 32011/03/2015-Ad.
the DoP&T OM being F. No. AB. 14017/48/2010 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 se 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 held:
"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."Page 30 of 39
Item No.60 (Court - 5) O.A. No.2342/2023 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 zo 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, 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 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 wi 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. T 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 junior-senior clause in the samee 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."
18.12.2013.
7.23 The only requirement was, determinati determination of seniority from the date of appointment, the crucial cut cut-off date being 28.09.2015 i.e., date of appointment as "Tax Assistant"
28.09.2015, irrespective of Directorate/Cadre or ICT.
7.24 The clarification(s) / executive instructions issued by the respondent cannot cannot supersede the RR's RR's. The interpretation of clarification(s)/executive instructions, instructions, which sub-serve the intent and purpose of RR's, RR's must been given effect to, which has been Page 31 of 39 Item No.60 (Court - 5) O.A. No.2342/2023 deviated from while issuing June, 202 2024 by the respondents running contrary to the action on the part of official respondents is contrary to OM F. No. A.32011/03/2015-AD.lll.A AD.lll.A dated 13.11.2020 read with Clarification No. 1 of 2021 dated 06.01.2021.
7.25 No doubt the OTR for EA has to be read harmoniously with the provisions of RR's of EA. However, in interpreting the including Senior-Junior Senior Junior clause i.e ―In case a junior is eligible under OTR, his / her seniors also be considered as per senior junior clause, provided such a senior has a minimum of 4 years qualifying service as on 01.01.2022 01.01.2022 (reducing two years from the six years qualifying service with which the junior is being promoted) by itself is contrary to the RR's. Such an interpretation is uncalled for which not only lead to anomalous situation bbut also disparity to Tax Assistant who were otherwise eligible without any benefit as well as to the persons who would be getting the benefit of OTR , thus, creatin a class and sub-class creating class among Tax Assistants dehors the RR's.
7.26 The OTR is only for period of six years years, thus, by giving a further urther concession except what has been observed herein will only create one more group. Furthermore, such a concession would be contrary to OTR Scheme itself.
7.27 One time relaxation is a concession to remove anomalies which might have arisen and cannot be construed and /or equated to an indefeasible right. The OTR in so far as promotion to the post of Page 32 of 39 Item No.60 (Court - 5) O.A. No.2342/2023 Tax Assistant is concerned, is applied while promotion is based on "Seniority cum Merit", Merit" whereass when the promotions are made on thee basis of "Merit Cum Seniority", the Junior Junior-Senior clause has to be invoked.
7.28 In Prathibha Rani & Ors. vs. Union of India & Ors. vide Civil Appeal No. 3792 of 2019, 2019 :-
"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 here this very issue was examined in the factual context of the same department 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, ervice, being regular service in the grade, has to be taken into account as part of 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 promotion. That it is a non-transferable transferable job, makes no difference on this aspect as service is rendered in the same cadre."
7.29 Another important aspect to be looked into while applying or not applying the junior senior clause in strict sense of the term, which is required to be dealt with is illustrated herein below below:-
(i) The only channel for promotion to a higher post in the feeder cadre and there is no dispute between inter inter-se seniority among the direct recruits recruit and promotees.Page 33 of 39
Item No.60 (Court - 5) O.A. No.2342/2023
(ii) Both the junior and senior officers belong to different cadres;
(iii) If a senior foregoes/refuses promotion leading to his junior being promoted/appointed to the higher post earlier;
(iv) The senior may be on deputation while junior avails the ad hoc promotion in the cadre;
(v) Where a senior proceeds on Extra Ordinary Leave and returns back thereby losing any increment.
(vi) Local officiating promotions/ stop gap arrangement /current duty charge within a Circle have resulted in their being deprived of a chance to officiate in the higher post due to administrative exigencies.
7.30 In present factual scenario, the promotions are being made on the basis of OTR i.e., i.e given precedence to "seniority over merit" more particularly, in light of amendment to RR's to remove merit", anomaly/ disparity which has given rise to change in eligibility criterion to the post of Executive Assistant ( erstwhile Senior tax Assistant) and the junior senior clause (NOTE -1) could not have Assistant), been further applied and extended for giving further concession of 4 (four four years).
7.31 A combined reading of all the above quoted instructions as well as settled position in law leave no scope for doubt regarding the applicants' applicants eligibility for promotion to the post of STA ((now Executive Assistant) on completion of three years of servic service from the date of appointment as Tax Assist Assistant in the feeder cadre of any Page 34 of 39 Item No.60 (Court - 5) O.A. No.2342/2023 Zone one before 18.12.2013, the period rendered cannot be ignored altogether which stands already extended. The present case is covered by the above quoted provision ii.e., para 3.1.3 of the said OM wherein a provision in so far as the junior senior clause applicability stood applied in respect of the applicants who had joined as Tax Assistant, i.e., the feeder grade for promotion to the post of STA on before 31.12.2010 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.
7.32 The status status of Applicants in OA CGLE 2011, 2012 under OTR dated 23.12.2022 and 15.05.2023 is reproduced as under :-
Applicants in OA CGLE 2011, 2012 and eligible under OTR dated 23.12.2022 and 15.05.2023 Sl. Name Date of Parent Zone Date of Seniorit Eligibility appointme appointme y nt nt to Delhi Position Zone
1. Manis 27.02.2014 Vadodara 05.10.2017 267 Fulfilling both h condition OTR dated Kumar 23.12.2022 without Gauta seeking benefit of m senior junior clause
2. Vattan 30.12.2013 Pune 24.08.2016 216 Dhima n
3. Tarun 16.12.2013 Pune 05.10.2017 266 Kumar
4. Megha 30.06.2014 Lucknow 05.10.2017 263 Goyal
5. Sumit 03.03.2014 Shilong 05.10.2017 264 Dabas
6. Pankaj 30.04.2014 Vishakhapatn 24.08.2016 214 Nain am
7. Dhruv 23.05.2013 Vadodara 19.12.2018 286 He was promoted as Senior Tax Assistant in his parent Zone but for inter-
commissionerate transfer he was reverted and then transferred (ICT) Page 35 of 39 Item No.60 (Court - 5) O.A. No.2342/2023 hence he had 5 year 11 month 10 days as in the grade TA with benefit of senior junior clause, he becomes eligible for OTR and promotion as EA
8. Jitende 21.02.2014 Mumbai 24.08.2016 218 Fulfilling both r Custims condition OTR dated Nagar 23.12.2022 without
9. Nitish 20.06.2014 Pune 15.06.2020 349 seeking benefit of Moury senior junior clause a
10. Yoges 30.12.2013 Vadodara 19.12.2018 287 h
11. Jogind 16.01.2014 Hyderabad 24.08.2016 215 er
12. Munis 07.02.2014 Vishakhapatn 24.08.2016 213 h am Sharm a
13. Noushi 30.12.2013 Chennai 05.10.2017 265 n Fatima (Note*): The date of joining in Delhi Zone has to be ignored. (Note*):
Putting in residency period of three years prior as 27.9.2015 with respective date of appointment irrespective of zone 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 zone before 18.12.2013. ( Ref: Ningma ma Doma Yolmo)( Supra). As there is no logic or justification to come to a different conclusion when the RR's have been amended which would be an impediment for promotions to persons who were otherwise eligible for STA under earlier Rules when residency period was three years till 28.9.2015. Hence, the action on the part of official respondents is contrary to OM F. No. A.32011/03/2015 A.32011/03/2015-AD.lll.A dated Page 36 of 39 Item No.60 (Court - 5) O.A. No.2342/2023 13.11.2020 read with in the Delhi Zone read with Clarification No. 1 of 2021 dated 06.01.2021.06
7.33 The amendments to RR's are not zone specific. As there is no logic or justification to come to a different conclusion when the RR's have been amended which would have been an impediment for promotions to persons who were otherwise eligible for STA under old Rules when residency period was three years till 28.9.2015. Further to exercise the Power to Relax under Rule 7 of Rules, 2015 for applying junior senior clause as regards persons appointed in any zone after 29.8.2 29.8.2015 on the part of official respondents is contrary to OM F. No. A.32011/03/2015 respondents, A.32011/03/2015-AD.lll.A dated 13.11.2020 read with Clarification No. 1 of 2021 dated 06.01.2021. No other interpretation by way of any clarification can be made dehors the Rules.
7.34 We thus, observe that the junior senior clause would apply only in respect to the applicant(s) who had been appointed as Tax Assistant, i.e., the feeder grade for promotion to the post of STA STA, on or before 18.12.2013 irrespective of any Z Zone, provided that the official should have completed three years qualifying service before EA RR's of 2015 came into effect and there were vacancies in EA cadre during the intervening period between 18.12.2013 and 27.09.2015.
7.35 .35 The applicants applicants / who have been appoint appointed (as distinct from date of joining) during the intervening period prior to 18.12.2013 Page 37 of 39 Item No.60 (Court - 5) O.A. No.2342/2023 "in any zone" ought to extended benefit of OTR for a period of six years.
7.36 .36 The contention of the official respondents that there is no challenge to seniority list or promotion motion order dated 18.10.2024 ((as per direction(s) of the Hon'ble High Court is subject to outcome of present OA), OA) has no force, as their action with regard to applicability /interpretation of junior senior clause for which the rights of individual(s) individual(s) which cannot be defeated by mere technicalities for no fault of theirs is under challenge. More More-so, only step needs to be undertaken is to re-examine and re-work, the case of each individual and their respective right to be considered for promotion on case case to case basis in terms of discussions herein above.
8. CONCLUSION 8.1 Accordingly, we dispose of the present OA as well as pending application(s) with directions to the official respondents to re-examine examine and re-work re work the case of each individual and their respective rights right to be considered for promotion on case to case basis, within 45 days of receipt of the certified copy of the order order, taking into account the past services rendered as Tax Assistant. In order to assess the seniority position of an individu individual, the length of service for promotion to the post of the Executive Assistant ought to be determined strictly as per RR's and as per Notification dated 13.11.2020 read with Clarification dated 6.3.2021 6.3.2021, irrespective of Page 38 of 39 Item No.60 (Court - 5) O.A. No.2342/2023 any zone.
8.2 Upon completion of such exercise, the applicants and similarly situated persons who fall within notified vacancies shall be granted promotion to the post of Executive Assistant with all consequential benefits by suitably modifying the promotion order dated 18.10.2024, which was made subject to outcome of present OA. The above exercise shall be completed and finalized within a period of three months from the date of receipt of certified copy of this order.
8.3 In view of the above, no separate orders are re required to be passed in pending CP(s), which also stands disposed of accordingly. All pending MA(s), if any, also stand disposed of. No costs.
(Dr. Anand S Khati) (Manish Garg)
Member (A) Member (J)
/sb/
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