Indian Kanoon - Search engine for Indian Law

By Akhil Kumar Srivastava, JM.-

The applicants, through this Original Application, are challenging the order dated 14.06.2013 (Annexure A-1), whereby the notional promotion granted to the applicants from the grade of LDC to Tax Assistant w.e.f.05.05.2003 has been revised.

2. The brief facts of the case are that all the applicants were initially appointed as Sipahi in the respondent department in the year 1985. Subsequently, they were notionally promoted to the post of LDC w.e.f.20.09.2002 vide order dated 09.04.2009 (Annexure A-2). In 2010, the office of respondent No.4 issued an Establishment order dated 16.02.2010 (Annexure A-3) by which all the applicants, who were notionally promoted as LDC were deemed to have been notionally promoted as Tax Assistant w.e.f.05.05.2003 subject to passing the computer proficiency examination within two years to be reckoned from the actual date of their order for promotion as LDC. However, vide impugned Establishment order No.18/2013 dated 14.06.2013 (Annexure A-1), the respondent No.4 ordered that 'any person, who holds post of LDC on regular basis and falls within ANUPAM ANUPAMMISHRA MISHRA 2025.01.06 11:24:24+05'30' 5 OA 200/691/2023 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. date of passing such examination on the post of Tax Assistant'. Thus, the respondent No.4 implemented the impugned order and withdrawn the promotional benefits of the applicants and revised the pay of the applicants thereby making recovery from their pay. The applicants submit that they were granted the notional promotion under direction issued by the Hon'ble Andhra Pradesh High Court. The new recruitment rules for the post of LDC were published in the Gazette on 21.09.2002. Hence the effective notional date of promotions from Group D to the pre restructured LDC should be taken as 20.09.2002.

3. The respondents have stated in their reply that the restructuring of the Customs & Central Excise Department was implemented on 19.07.2001 (Annexure R-1) and the cadres of UDC, Date Entry Operator Grade A and LDC were merged and re-designated as Tax Assistant. Further, the new Recruitment Rules for LDC were notified on 09.09.2002 and for Tax Assistant on 02.05.2003. Subsequently, the pre-restructured posts of LDC were filled by promotion of the Sepoys (Group D) notionally from date ANUPAM ANUPAMMISHRA MISHRA 2025.01.06 11:24:24+05'30' 6 OA 200/691/2023 prior to the publication of the LDC Recruitment Rules of 2002. The Sepoys promoted notionally to the grade of LDC with retrospective effect came within the seniority list at the commencement of the Tax Assistant Recruitment Rules, 2003 and, therefore, were eligible for promotion to the grade of Tax Assistant on passing of the Departmental Computer Proficiency examination. In this regard, a clarification was issued on 17.11.2009 (Annexure A-7). However, vide Establishment Order No.9/2010 dated 16.02.2010 (Annexure A-3), the applicants were promoted to the grade of Tax Assistant notionally with effect from 05.05.2003 subject to passing the Computer Proficiency Examination within two years reckoned from the actual date of their order of promotion as LDC. This order was found not in consonance with the provisions of Rule 4(3) of the Tax Assistant Recruitment Rules, 2003 as per which the promotions could be granted only on passing the Computer Proficiency Examination. Accordingly, it was ordered that the officers would be deemed to be promoted from the date of their passing the computer proficiency examination instead of 05.05.2003.The Establishment Order No.18/2013 dated 14.06.2013 (Annexure A-3) has been issued in order to rectify the erroneous promotions granted to the grade of Tax Assistant.

11. We find that case of the applicants does not fall under the guidelines contained in paragraph 18 (i) - (iv) as the corrective measure has soon been taken by the respondents when the discrepancies regarding applicant's promotion as Tax Assistant were noticed and the same was rectified to the effect that they shall be deemed to be promoted from the date of passing of the Departmental Computer Proficiency Examination and not w.e.f.05.05.2003. Moreover, the judgment in the case of Rafiq Masih (supra) was delivered at a subsequent date by which time the excess amount paid to the applicants had already been recovered. Therefore, the ratio of ANUPAM ANUPAMMISHRA MISHRA 2025.01.06 11:24:24+05'30' 11 OA 200/691/2023 law laid down in the case of Rafiq Masih (supra) will not be applicable to the facts and circumstances of this case. As has been held by the Hon'ble Supreme Court in the case of Chandi Prasad Uniyal (supra) that the excess payment if made exceeding the entitlement of the concerned employee is required to be recovered since the said amount is tax payer's money, we do not find any illegality in the action of the respondents in making recovery from the excess amount paid to the applicants.