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"4(3) Any persons, who holds a post of Lower Division Clerk on regular basis and falls within the seniority list as determined by the appointing authority at the commencement of these rules shall, on passing the Departmental computer Proficiency Examination, conducted by the appointing authority, be deemed to have been promoted with effect from the date of passing such examination on the post of Tax Assistant."

[2] It is contended by the applicants that by virtue of Rule 4 (3) of the Recruitment Rules 2003 they should be deemed to have become Tax Assistants with effect from the date they qualified in the Departments Computer Proficiency Examination. They have produced documents to show that they have passed the said Departmental Examination held on 2nd December 2003 (Annexure-A4). The applicants have also sought for notional promotion to the post of LDCs from November 2002 because in the year 2006, 44 vacancies are deemed to have become available wef November, 2002 and December 2002. It is their contention that they are eligible to be adjusted in the relevant promotional quota out of those 44 vacancies, which become available consequent to the notional promotion of 44 LDCs by order dated 26.6.2006. The applicants have sought the following specific relief:

[4] In the rejoinder filed by the applicant it is stated that as per the Recruitment Rules 2003 issued on 2nd May 2003, any person, who holds a post of Lower Division Clerk on regular basis and falls within the seniority list as determined by the appointing authority at the commencement of these rules shall, on passing the Departmental Computer Proficiency Examination conducted by the appointing authority, be deemed to have been promoted with effect from the date of passing such examination on the post of Tax Assistant. It is therefore the contention of the applicants that this Rule does not discriminate between LDCs recruited as per the Recruitment Rules 1979 vis- `-vis, those recruited as per Recruitment Rules 2002. All LDCs who are working on regular basis are covered by Rule 4(3) of the Rules 2002. The applicants are working as LDCs since 14.2.2003. Only those LDCs, who joined service after 2.5.2003 have to complete 7 years service for becoming eligible for promotion as Tax Assistant.

[5] The respondents filed additional reply statement disputing the contentions of the applicants. It is stated in the additional reply that clause 4(3) of the new Recruitment Rules of Tax Assistant 2003 is applicable only to those LDCs who were recruited / promoted as per the Recruitment Rules of 1979. If the interpretation of the applicants is accepted, all the LDCs promoted from Group-D cadre as per Recruitment Rules 2002 in different Commissionerates throughout India from 09.9.2002 (the date of Notification of Annexure-A6) to 02.5.2003 (the date of Notification of Annexure-A9) will have a claim for redesignating them as Tax Assistant on passing the Departmental Computer Proficiency Examination in terms of Rule 4(3) of Rules 2003, which will give rise to a spate of litigation by similarly placed LDCs in different Commissionerates and consequent unsettling of settled seniority position of several Group-C and Group-B staff in the Department. Annexures-A6 and A9 clearly indicate the number of post available for different Recruitment Rules. For Recruitment Rules 2002 the number of post is 717 and for Recruitment Rule 2003 the number of posts is 5525. A bare reading of these two notifications would establish that the existing posts in the cadre of UDC, DEO (A) and LDC (except 717 posts for the purpose of promotion of Group-D) have been merged into and re-designated as Tax Assistant (New).

[8] The second prayer is for promotion as Tax Assistant by virtue of Rule 4(3) of the Recruitment Rule 2003. The text of the said Recruitment Rules 4(3) is extracted supra. As per the said Rule any persons, who holds a post of Lower Division Clerk on regular basis and falls within the seniority list as determined by the appointing authority at the commencement of these rules shall, on passing the Departmental computer Proficiency Examination, conducted by the appointing authority, be deemed to have been promoted with effect from the date of passing such examination on the post of Tax Assistant. It is abundantly clear from Rule 4(3) that any person who is holding the post of LDC on regular basis shall be deemed to have been promoted w.e.f. the date of passing of the departmental computer proficiency examination. This Rule does not distinguish between LDCs who are directly recruited and those who are promoted from Group-D staff. The contention of the respondents that the benefit of Rule 4(3) is not available to those LDCs who came from promotion from Group-D staff cannot be sustained in the eye of law. The suggestion made by the respondents that Rule 4 (3) has to be read in conjunction with Note 5 of the letter dated 19.7.2001 cannot also be sustained, as the Recruitment Rules are issued under Article 309 of the Constitution. The provisions of the said Recruitment Rules cannot be diluted by way of a letter. It is also to be noted that the Respondents themselves allowed the applicants to appear in the departmental computer proficiency examination and they have passed the examination in December 2003 as per the result declared by Annexure-A4. Further the exclusion of those LDCs who came on promotion from Group-D staff would be discriminatory and a violation of Article 14 of the Constitution. The contention of the respondents that accepting the prayer of the applicants will lead to a spate of litigation cannot be accepted as a valid reason for denying a benefit provided by the provisions of a duly notified Rule. We are, therefore, of the considered view that by virtue of Rule 4(3) of Recruitment Rules 2003 the applicants are entitled to be promoted as Tax Assistants with effect from the date they passed the departmental computer proficiency examination, if they come within the seniority list as determined by the Appointing Authority.