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HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER This Original Application is filed against Annexure A-19 order dated 6.9.2007 rejecting the representation of the first applicant for appearing in the departmental examination for promotion as Tax Assistant on the ground that he does not have the minimum regular service of six years for appearing in the departmental examination and the qualifying service of seven years for promotion as Tax Assistant.

2 The brief facts as submitted by the applicants in the O.A. are as follows. The first applicant joined service as Sepoy on 30.8.1989 and was promoted as Havildar later. The 3rd applicant entered service as Sepoy on 6.11.1995. All the three applicants passed the departmental examination held in January, 2003 and became qualified for promotion as Lower Division Clerk. The first and second applicants were appointed as Lower Division Clerks on 14.2.03 and the 3rd applicant was appointed on 8.7.2004 which too was later changed to 14.2.2003. As per the amended Central Excise and Customs Department Tax Assistant (Group-C posts) Recruitment Rules 2003 (Annexure A-3) a Lower Division Clerk appointed on regular basis and falls within the seniority list, on passing the departmental computer proficiency examination is deemed to have been promoted to the post of Tax Assistant w.e.f. the date of passing such examination. It is submitted that the applicants were LDCs on regular basis w.e.f. 14.2.2003 (Annexure A-4) and hence they were eligible for promotion as Tax Assistant as and when they pass the Departmental Examination on Computer Proficiency. It is submitted that the 4th respondent conducted a Computer Proficiency Test on 28.5.03. The applicants were denied the opportunity. In another test conducted in December, 2003 the first and second applicants were permitted to appear in the examination and they have passed the practical test but failed in theory. As per Annexure A11 notification applications were called for the test on 22.9.04 for promotion of LDCs to Tax Assistants. In the meanwhile the 2nd respondent issued a letter to the effect that an LDC who has completed 6 years of regular service in the grade on the date of examination only should be allowed to appear in the departmental examination (Annexure A-13). On the basis of Annexure A-13 the applicants were not allowed to appear in the examination. The 2nd and 3rd applicants submitted representations for relaxing the recruitment rules which were rejected. Aggrieved by the rejection of their requests and denial of opportunities to appear for the departmental examination they have approached this Tribunal through this O.A.

(iii) The LDCs who were allowed to appear for the test on 275.2003 had to pass only the practical test in computer proficiency. By not permitting the applicants to appear for the test conducted on 27.5.2003 the applicants are forced to pass the theory as well as Practical tests.

4. The applicants have filed the O.A mainly for a declaration that they were entitled to appear for the departmental examination conducted on 28.5.2003 onwards for promotion to the cadre of Tax Assistants with all consequential benefits, to direct respondents to promote the 1st and 3rd applicants as Tax Assistants w.e.f. 27.5.03 as they had passed the practical examination in computer proficiency and to direct the respondents to conduct the practical test in computer proficiency and on passing the test to promote the third applicant as Tax Assistant.

8 We have heard Shri CSG Nair for the applicant, Ms Jisha for Mr. TPM Ibrahim Khan, SCGSC appearing on behalf of the respondents and gone through the pleadings carefully.

9 The learned counsel for the applicants argued that according to Rule 4(3) of the new Recruitment Rules those who are holding the post of Lower Division Clerk on regular basis and fall 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 w.e.f. the date of passing such examination on the post of Tax Assistant. The learned counsel contended that by virtue of Rule 4(3) of the Recruitment Rules 2003 the applicants should be deemed to have become Tax Assistants w.e.f. 27.5.2003 -the date they qualified the Departmental Computer Proficiency Test. The learned counsel for the applicants brought to our notice the decision of Tribunal on similar lines in O.A.175/2008 which was partly allowed.

11 Having heard the learned counsel for both sides and after going through the pleadings and the judgment brought to our notice, we find that the provisions of Recruitment Rules cannot be diluted by way of a letter as the Recruitment Rules are issued under Article 309 of the Constitution. 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 w.e.f. The date they passed the departmental computer proficiency examination if they come within the seniority list as determined by the Appointing Authority. Accordingly we follow the judgment of this Tribunal in O.A.175/2008 and allow the O.A. with similar direction. The O.A. is therefore allowed with a declaration that the applicants are entitled to be promoted as Tax Assistants w.e.f. the date they passed the computer proficiency examination prescribed under Rule 4(3) of the Recruitment Rules, 2003 if they fall within the seniority list as determined by the Appointing Authority at the commencement of the said Rules. The respondents are directed to issue necessary orders accordingly within a period of three months from the date of receipt of a copy of this order. No costs.