Document Fragment View

Matching Fragments

5.2 The case set up by the Applicants is that there is no RR whatsoever for the post of DPA-A and the appointments have been done in 1995 in the absence of any statutory rules. They were not required to possess the same qualification as required for the recruitment of PACO. The essential educational qualification in their case is Graduate with diploma/Certificate in computer application. As per the Recruitment Rules notified on 25.5.1990 (Annexure-A4) PACO was the feeder cadre to the post of Programmer Grade A gazetted in the then pay scale of Rs.2200-4000. PACO with 5 years of service experience was eligible for promotion to the post of Programmer. By a notification dated 16/19 August 1999 (AnnexureA-6) inter alia the post of Programmer was redesignated as Assistant Director (Systems) with scale of Pay of Rs.8000-13500. Under Article 309 of the Constitution of India, the Directorate of Income Tax (Systems) Joint Director (Systems) Deputy Director (Systems) and Assistant Director (Systems) Recruitment Rules, 2001 was notified on 27.7.2001 (Annexure-A3). Consequent to the judgments of Honble High Court of Chennai and Bangalore, Hyderabad and Calcutta Benches of this Tribunal, 7 PACO were appointed notionally to officiate on regular basis in the post of Programmer [Assistant Director (Systems)] (in short AD (Systems) vide the order dated 26.2.2008 (Annexure-A8). 

From						To
(i)	Deputy Director/Computer Manager	Joint Director (Systems)
	(Rs.12,000-16,500)				(Rs.12,000-16,500)
(ii)	Assistant Director/Systems Analyst	Deputy Director (Systems)
	(Rs.10,000-15,200)				(Rs.10,000-15,200)

(iii)	Programmer Assistant Director 
(Systems)
	(Rs.8,000-13,500)				(Rs.8,000-13,500)

5.4 In OA No.925/2002 between Dalchand and 3 others versus Union of India and Others decided by this Tribunal on 22.5.2003 (It is noted that the Applicants in the OA No.925/2002 are the same in the current OA), the Applicants agitated before this Tribunal contesting their grievances that they were not considered by the official Respondents for promotion to the post of Programme Assistants/Console Operators in accordance with the existing Recruitment Rules. On the other hand, the Official Respondents have issued the orders dated 23.10.2001 stating that all posts of Data Entry Operators Grade-D stand merged in the cadre of DPA Grade-A. According to the Applicants, there was no notified Recruitment Rules in 1995/1996 and thus, they challenged the appointment of the Private Respondents which took place through direct recruitments under 1995 Rules (not approved by UPSC and not notified in the Gazette) and demanded to be considered for promotion as Programme Assistants. The Tribunal having perused the files of the Respondents noted that 1995 Rules were not published in the official gazette. Further it did not show that the said Rules were approved by the UPSC or published under Article 309 of the Constitution of India. Thus, the new posts on restructuring or the merger could not have come into effect without the finalization of the Recruitment Rules as per the instructions dated 25.11.1993. In this context, the Tribunal relied on the ratio in the case of Y. V. Rangaiah versus J. S. Rao (1983 (3) SCC, 284) which lays down the ratio that vacancies occurring prior to the amended rules have to be filled up under the old rules and thus, it was observed by the Tribunal that the Respondents could not have resorted to following the 1995 Rules which was not notified following the due procedure. After the orders were passed by the Tribunal in OA No.925/2002 on 22.05.2003, one Shri S. Karthik who was not impleaded as Private Respondent in OA No.925/2002, submitted the Review Application before the Tribunal to review the judgment of this Tribunal in the said OA. While dismissing the RA, the Tribunal in the interest of justice, not to unsettle the settled position protected the appointments under the un-notified 1995 RRs since such appointments were made long back in the year 1995. The Tribunal also authorized official Respondents to issue valid Rules in which those recruitment, their service would be protected. The recruits of 1995 were to be treated on ad hoc officiation or any decision to be taken by the Government.

14. For appropriate appreciation of issues to be adjudicated, we take extract of the Rule 4 of the RR 2008 which has been assailed by the Applicant and it reads as follows :-
Rule 4 of the Recruitment Rules dated 4.4.2008 GSR 263 (E) Anenxure-A/1.
4. Initial Constitution-(1) All Data Processing Assistant Grade A (appointed by the Department during the period November, 1995 to May, 2003)/ existing Programme Assistant/Console Operator working on regular basis on the date of notification of the rules shall be deemed to have been appointed as Data Processing Assistant Grade A in accordance with the provisions of these rules and the previous regular services rendered by them shall be counted for all purposes including seniority.
Sir, I am directed to state that the question of restructuring the cadre of Programme Assistants/Console Operators (present Scale Rs.1640-2900) in the Income Tax Department, in the light of the Ministry of Finance, Department of Expenditure O.M. No.F.7(1)/IC/86(44) dated 11.9.89 has been under consideration with the Board and it has now been decided to restructure the cadre of Programme Assistants/Console Operators in the following grades:-
Data Processing Assistance Gr.A-GroupC post.
(Rs.1600-2660) Data Processing Assistant Gr.B-Group B post (Rs.2000-3200)