Document Fragment View

Matching Fragments

HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER The applicant, who is presently working as Lower Division Clerk in the Central Excise Division-I, Palakkad, seeks promotion as Tax Assistant w.e.f the date of passing the computer proficiency examination.

2 The applicant joined service as Sepoy on 1.7.1982 (A-1). According to him, 10% of the vacancies to the cadre of LDC is to be filled from Group-D employees through departmental examination consisting of three papers(A-2). The applicant appeared in the examination in 1987 but failed in Paper-III. He passed Paper-III in September, 1997 (A-4). The Recruitment Rules were amended in November, 2002(A-5), according to which, 100% vacancies are to be filled up by promotion - 50% by seniority and 50% by promotion of Sepoys/Havildars who possess Matriculation or equivalent qualification and rendered 5 years of service and qualifies in typing test. In the meanwhile, the applicant was promoted as Havildar in November, 2002. He was promoted as LDC along with others (A-6). He passed the computer proficiency test in December, 2003(A-7). When he was not promoted to the cadre of Tax Assistant, he submitted a representation (A-10) upon which he was reverted to the cadre of Havildar (A-11). He was again promoted as LDC on 19.2.2009 (A-12). As per the Tax Assistant Recruitment Rule 4 of the Rules 2003, he should have been promoted as Tax Assistant w.e.f the date of passing the computer proficiency examination. Hence, he filed this O.A for a direction to the respondents to promote him as Tax Assistant w.e.f. 2.12.2003 i.e. the date of passing the computer proficiency examination, to consider him for further promotion on the basis of his notional seniority in the cadre of Tax Assistant. The main grounds urged are that he is eligible for promotion to the post of Tax Assistant as per the Recruitment Rules according to which all LDCs shall, on passing the departmental computer proficiency examination should be deemed to have been promoted w.e.f the date of passing such examination for the post of Tax Assistant, the order of the Tribunal in O.A. 175/2008, denial of promotion to him is violation of fundamental rights under Article 14 & 16, his reversion without notice after he had completed more than two years as LDC is illegal and that no further confirmation as LDC is required as he was a confirmed Sepoy.

5 We have heard the parties on either side.

6 The short question that come up for consideration are whether the reversion of the applicant from LDC to Havildar in 2005 is illegal and that he is entitled to be promoted to Tax Assistant from the date of passing the computer proficiency examination in December, 2003. 7 The applicant who joined as Sepoy in 1982, took the qualifying examination for promotion to LDC in 1987. As per the Recruitment Rules, 1979, 10% of vacancies to be filled up by direct recruitment, will be reserved for Group-D employees of the Department with Matriculation as educational qualification. Out of the 3 papers prescribed for the qualifying test, he failed in paper-III. He appeared for the test once again in 1997, after a long gap. The result, at A-4 shows that he did not get pass marks in Paper I but he passed in Paper III which he did not clear in 1987. While matters stood so, he was promoted as Havildar on 23.9.2002 and as LDC on 6.2.2003 vide A-6. The applicant passed the departmental examination for promotion to Tax Assistant from LDC, held on 2.12.2003. Since he was not promoted as Tax Assistant till 2005, while a few LDCs were being promoted, he represented vide A-10 dated 11.2.2005 and got reverted as Havildar vide A-11 dated 14.2.2005. In the reply statement, the respondents produced letter No. A-12034/172/85-Ad.III-B issued by the Central Board of Excise & Customs to the Principal Collector of Customs & Central Excise, Madras dated 11.2.1986 (Annexure R-1) which is extracted below to substantiate their action in reverting the applicant.

14 The learned counsel for the applicant has relied on the judgments of this Tribunal in O.A. 433/2009 and O.A. 320/2009 and contended that he is identically situated like the applicants in those cases and sought reliefs allowing the O.A. The case of the applicants in that O.A were that, they were entitled to promotion from the date of passing the computer proficiency test whereas, the case of the applicant on hand though it looks identically situated is not so. The applicant in the case on hand has been reverted unlike the applicants in O.A. 433/09 and other case. In view of the finding in para 8, we do not find that the applicant is similarly situated like the applicant in O.A. 433/09 and 320/2009.