Madras High Court
Aruna Venkatesh vs Union Of India on 19 February, 2025
Author: Anita Sumanth
Bench: Anita Sumanth
2025:MHC:446
W.P.Nos.20743 & 20744 of 2010 &
W.P.No.4669 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 30.10.2024
PRONOUNCED ON : 19.02.2025
CORAM:
THE HON'BLE DR.JUSTICE ANITA SUMANTH
AND
THE HON'BLE MR.JUSTICE G.ARUL MURUGAN
W.P.Nos.20743 & 20744 of 2010 &
W.P.No.4669 of 2011 and
M.P.Nos.2, 1, 1 & 2 of 2013 & 1 of 2011
W.P.No.20743 of 2010
1.Aruna Venkatesh
2.A.Mariajoseph Raj
3.Bhavani Chinnachamy ... Petitioners
versus
1.Union of India,
Rep. by the Chief Commissioner of Customs,
Custom House, Chennai - 1.
2.Union of India,
The Commissioner of Customs,
Custom House, Chennai - 1.
3.Chairman,
Central Board of Excise and Customs,
Ministry of Finance,
Department of Revenue,
New Delhi - 1.
4.N.A.Nalini
1/48
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W.P.Nos.20743 & 20744 of 2010 &
W.P.No.4669 of 2011
5.A.Zubaida Begum
6.N.L.George
7.C.C.Sheela
8.S.N.Suresh
9.R.Ambika
10.K.V.Pushpavally
11.G.Sarvamangala
12.P.S.Rossamma
13.V.G.Bhargavi
14.T.V.Jayasri
15.P.K.Rubymol
16.T.R.Indradevi
17.Daisy K.Paulose
18.Liji.Joseph
19.V.V.Vasantha Lakshmi
20.Uma Mahesh Achalla
21.A.Srinivasa Rao
22.Jayalakshmi Veerasamy
23.S.Ravichandran
24.D.Diwakar
25.M.Ravi Kumar
26.Jahabar Sathick
27.K.P.Asokan
28.R.Kumar
29.C.U.Susan
30.S.Geetha
31.The Registrar,
Central Administrative Tribunal,
Chennai Bench,
Chennai - 104. ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India
praying to issue a writ of Certiorarified Mandamus, calling for the records of
the 31st respondent in its order dated 03.09.2010 in O.A.No.12 of 2010,
quash the same and consequently forbear the respondents 1 to 3 from
effecting promotions to the post of Custom Appraiser from among the
respondents 23 to 28 who were promoted as Inspector (Examiner) on
2/48
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W.P.Nos.20743 & 20744 of 2010 &
W.P.No.4669 of 2011
20.10.2003 which was subject to result of W.P.No.28333 of 2003 or any of
the juniors to the petitioners without first promoting the petitioners as
Inspector (Examiner) w.e.f. 20.10.2003 on notional basis with all
consequential benefits including consideration for further promotion as
Custom Appraiser.
For Petitioners : Mr.Karthik Rajan
For Respondents : Mr.A.P.Srinivas
Senior Standing Counsel - R1 to R3
Mr.Akbar Row - R23, 27 & 28
Mr.P.V.S.Giridhar
Senior Counsel
for Ms.Y.Kavitha - R24 to R26
Tribunal - R31
R-4 to R-22, R-29 & R-30 - Given up
vide Sr.No.92329 dated 07.09.2010
W.P.No.20744 of 2010
1.K.Ramasubramaniam
2.V.Vaijeyanthi (formerly Jayanthi Natarajan)
3.Aruna Venkatesh
4.Bhavani Chinnaswamy
5.A.S.Kamalakkannan
6.N.T.Mukuntan
7.R.Saranga Rajan
8.K.Ananda Ganesh
9.P.K.Radhakrishnan
10.P.S.Vijayalakshmi
11.Nirmala Devi
12.Hema Karthikeyan
13.Shanthi Venkataraman
14.B.Usha
15.E.Devendran
16.Geetha Prakash
17.Aruna Ganesan
18.M.Elango ... Petitioners
versus
3/48
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W.P.Nos.20743 & 20744 of 2010 &
W.P.No.4669 of 2011
1.P.S.Narasimhan
2.Union of India,
Rep. by the Commissioner of Customs,
Custom House, Chennai - 1.
3.The Joint Commissioner of Customs (P&V),
Custom House, Chennai - 1.
4.The Registrar,
Central Administrative Tribunal,
Chennai Bench, Chennai - 104.
5.Srividya
6.K.Geetha
7.Kamakshi Muralidharan ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India
praying to issue a writ of Certiorari, calling for the records of the 4th
respondent in its order dated 03.09.2010 in O.A.No.429 of 2009, quash the
same.
For Petitioners : Mr.Karthik Rajan
For Respondents : Mr.Akbar Row - R1
Mr.A.P.Srinivas
Senior Standing Counsel -R2 & R3
Tribunal - R4
R-5 to R-7 - Given up
vide Sr.No.92332 dated 07.09.2010
W.P.No.4669 of 2011
1.Commissioner of Customs (Imports),
Custom House,
New No.60, Rajaji Salai,
4/48
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W.P.Nos.20743 & 20744 of 2010 &
W.P.No.4669 of 2011
Chennai - 600 001.
2.The Joint Commissioner of Customs (P&V),
Custom House,
New No.60, Rajaji Salai,
Chennai - 600 001. ... Petitioners
versus
1.P.S.Narasimman
2.The Registrar,
Central Administrative Tribunal,
Chennai Bench, Chennai - 104.
3.K.Ramasubramaniam
4.V.Vaijeyanthi (Formerly Jayanthi Natarajan)
5.Aruna Venkatesh
6.Bhavani Chinnaswamy
7.A.S.Kamalakkannan
8.N.T.Mukuntan
9.R.Saranga Rajan
10.K.Ananada Ganesh
11.P.K.Radhakrishnan
12.P.S.Vijayalakshmi
13.Srividya
14.Nirmala Devi
15.Hema Karthideyan
16.Shanthi Venkataraman
17.B.Usha
18.K.Geetha
19.E.Devendran
20.Geetha Prakash
21.Kamakshi Muralidharan
22.Aruna Ganesan
23.M.Elango ... Respondents
5/48
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W.P.Nos.20743 & 20744 of 2010 &
W.P.No.4669 of 2011
PRAYER: Petition filed under Article 226 of the Constitution of India
praying to issue a writ of Certiorari, calling for the records of the 2 nd
respondent in its order dated 03.09.2010 in O.A.No.429 of 2009, quash the
same.
For Petitioners : Mr.A.P.Srinivas
Senior Standing Counsel
For Respondents : Mr.Akbar Row - R1
Tribunal - R2
R-3, 4, 6, 7, 11 to 15, 17,
18, 19, 21, 22 & 23 - No Appearance
R-5, R-8, R-9, R-10,
R-16 & R-20 - Not ready in notice
COMMON ORDER
[Common Order of the Court was made by G.ARUL MURUGAN, J.]
W.P.No.20743 of 2010 is filed by the erstwhile Data Entry Operators
designated as Senior Tax Assistants, challenging the order of Tribunal dated
03.09.2010 in dismissing O.A.No.12 of 2010.
2. W.P.No.20744 of 2010 is also filed by the erstwhile Data Entry
Operators designated as Senior Tax Assistants and W.P.No.4669 of 2011 is
filed by the Customs Department, both challenging the order of Tribunal
dated 03.09.2010 in O.A.No.429 of 2009, wherein the claim of the erstwhile
ministerial staff (UDC) redesignated as Senior Tax Assistant / Tax Assistant
was allowed.
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W.P.Nos.20743 & 20744 of 2010 &
3. Since the issue involved in these writ petitions is in respect of
the promotion to the post of Inspector (Examiner) in the Customs
Department, all the writ petitions are heard together and disposed of by this
common order.
4. The facts and the sequence of events to be noted in these writ
petitions are as follows:-
4.1. In the Customs and Central Excise Department, initially there
were two cadres, ministerial cadre and executive cadre. The ministerial
cadre consists of Lower Division Clerks (LDCs), Upper Division Clerks
(UDCs) and Tax Assistants (TAs). The next avenue of promotion for LDCs
was to UDC and TA and for the UDCs and TAs was to the post of Inspector.
4.2. The computerisation brought in the Customs and Central
Exercise Department led to some changes through bifurcation of the existing
cadres in 1980s. The bifurcation resulted in 2 streams as ministerial side and
technical side. Data Entry Operator cadre was created due to the
computerisation and they were governed by the Electronic Data Processing
Discipline (Group E Technical Post) Recruitment Rules, 1992. Hitherto
Data Entry Operators (“DEOs”) were not eligible to be considered as
Inspector because they were constituted as a different cadre.
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W.P.Nos.20743 & 20744 of 2010 &
4.3. In the year 2002, massive cadre restructuring took place in the
Customs and Central Excise Department and in the restructuring process,
the ministerial cadre comprising of the post LDC, UDC, UDC (UDC-special
pay), Assistant and Tax Assistants etc., were merged with DEO posts of
Grade-A, B & C. By restructuring, 2 new posts were created viz. Senior Tax
Assistant and Tax Assistant.
4.4. The higher posts of Inspector (Examiner/Preventive Officer)
were also restructured providing for revised promotional channels from the
pre-restructured as well as restructured feeder posts. The petitioners in
W.P.Nos.20743 and 20744 of 2010 who were earlier working as DEOs in
the Grade B & C category were merged into the post of STAs.
4.5. The Government by proceedings dated 05.06.2002 notified the
posts forming part of the restructuring by revised cadre allocation. By these
proceedings, 220 posts of Inspector (Preventive Officer) and 49 posts of
Inspector (Examiner) in respect of Chennai Commissionerate were notified
under the restructured category. Pursuant to the revised cadre allocation,
direction was also issued that the vacancy in respect of the posts included in
the cadre allocation restructuring, shall not be filled till further orders are
issued.
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W.P.Nos.20743 & 20744 of 2010 &
4.6. The Recruitment Rules for the post of Inspector (Examiner)
which is a Group 'C' post, which was earlier governed under Recruitment
Rules, 1979 was issued on 29.11.2002 under Article 309 of the Constitution,
in supersession of the Recruitment Rules, 1979. As per the 2002
Recruitment Rules, Column 12 prescribed the mode of promotion to the post
of Inspector (Examiner) and is extracted hereunder:-
“12. PROMOTION: (a) By selection from those candidates working in
the following pre-restructured cadres:
(i) Tax Assistant with two years service as Tax Assistant or 5 years
service as Tax Assistant and Upper Division Clerk put together;
(ii) Upper Division Clerk with 5 years service in the grade; and
(iii) Stenographer (Grade II) and Stenographer (Grade III) with 5
years regular service as Stenographer.
(b) By selection from those Candidates working in the following
restructured cadres:
(i) Senior Tax Assistant with 2 years regular service in the grade;
(ii) Stenographer Grade II with 2 years regular service in the grade.
(c) Failing the method of recruitment specified under clause (b) above, by
selection from Tax Assistant and Stenographers Grade III having not less
than 10 years service including the service to be included for this purpose
under the provisions of the rules regulating the method of recruitment to
the post of Tax Assistant.
NOTE 1: Promotion under clause (a) above shall be operative only for a
period of two years from the date on which the restructured cadre
mentioned under clause (b) come into existence.
The service rendered under the new grade in the restructured cadres shall
be counted towards considering the eligibility for promotion under clause
(a) above.
NOTE 2: Candidate shall be required to pass such written test as may be
determined by the Central Board of Excise and Customs from time to
time. The maximum age of eligibility for the departmental candidates
shall be 45 years which shall be relaxable to 47 years in the case of
candidates belonging to the Scheduled Castes or the Scheduled Tribes.
However, those of the officials who were not considered for such
promotion upto the age of 45 or 47 years, as the case may be, shall be
granted the benefit of relaxation in age limit upto 50 years in order to
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W.P.Nos.20743 & 20744 of 2010 &
enable a fair opportunity of a minimum of two chances. However, those
officials who were considered for promotion upto the age limit of 45 or 47
years as the case may be, on two or more occasions and were not found fit
for promotion shall not be eligible for this relaxation.
NOTE 3: Candidates shall be required to pass physical tests and confirm
the physical standards as specified in Column 8.
NOTE 4: The eligible officers under clause (a), (b) and (c) above shall be
required to pass through an interview before promotion.
NOTE 5: Where juniors who have completed their qualifying or eligibility
service are being considered for promotion, their seniors would also be
considered provided they are not short of the requisite qualifying or
eligibility service by more than half of such qualifying or eligibility
service or two years, whichever is less and have successfully completed
their probation period for promotion to the next higher grade along with
their juniors who have already completed such qualifying or eligibility
service.”
4.7. The Recruitment Rules 2003 for the post of STA (Group 'C'
posts) was also issued on 16.01.2003. Rule 5 prescribes the initial
constitution of the posts of the STA. Rule 5 is extracted hereunder:-
“5. Initial constitution,-(i) All the persons appointed on the
regular basis at the time of commencement of these rules to the Grade of
Assistant, Tax Assistant, Upper Division Clerk (Special Pay), Data Entry
Operator Grade 'B' and 'C' shall be deemed to have been appointed as
Senior Tax Assistants under these rules. The service rendered by them
before commencement of these rules shall be taken into account for
deciding the eligibility for promotion to the next higher grade.
(ii) Assistants (Rs.5000-8000) and Data Entry Operator Grade 'C'
(Rs.5000-8000) are being redesignated as unblock senior to the other
categories. However, their inter-se placement shall be done according to
the date from which they had actually been appointed to these grades on
regular basis subject to the condition that their inter-se placement in their
respective category shall not be altered.
(iii) The Data Entry Operator Grade 'B' (4500-7000) and Tax
Assistants (4500-7000) have been placed in their higher scale of 5000-
8000 and they shall be placed below the Assistant and Data Entry
Operator Grade 'C' and their inter-se placement shall be fixed in
accordance with the date of regular appointment to the respective grade
subject to the condition that their inter-se placement in respective
category shall not be disturbed.
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W.P.Nos.20743 & 20744 of 2010 &
(iv) Upper Division Clerk with special pay shall be placed below
Assistant, Data Entry Operator Grade 'C', Data Entry Operator Grade 'B'
Tax Assistants.
(v) The present employees would be required to pass the required
or suitable departmental examination, as specified by the Competent
Authority, from time to time, in Computer application and relevant
procedures within two years failing which they would not be eligible for
further increments.”
4.8. Rule 5 extracted above provides for the inter-se seniority
among the merged cadres, wherein the Tax Assistants, UDC special pay,
DEOs Group 'B' and 'C' who have been appointed as STAs are en bloc
placed as seniors in the first category.
4.9. Column 12 of the Inspector (Group “C” posts) Recruitment
Rules, 2002 provides for the feeder categories in Clause (a) of Column 12
consisting of the prestructured posts of UDC, Tax Assistant and Clause (b)
consisting of the new posts of STA with 2 years of regular service who were
entitled to be considered. In the absence of recruitment under Column 12(a)
& (b), the new posts of Tax Assistants were also eligible to be considered
for promotion under Column 12(c). A provision was also made through note
that consideration of promotion of the candidates in 12(a) shall be operative
only for a period of 2 years from the date on which the restructured cadres in
12(b) come into existence. Further as per Rule 5 of the Senior Tax Assistant
Recruitment Rules, 2003, service rendered in the erstwhile posts before
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W.P.Nos.20743 & 20744 of 2010 &
commencement of the Rules shall be deemed to be service in the
restructured posts of STA and TA for deciding the eligibility for promotion
to the next cadre.
4.10. On 10.06.2003, the Department took steps to effect promotion
to the post of Inspector (Examiner) based on the new Recruitment Rules
issued on 29.11.2002. However while doing so, the Department decided to
consider only the candidates available under Clause (a) of Column 12 for
promotion by excluding the consideration of candidates in Clause (b) who
are the petitioners in these two writ petitions for promotion.
4.11. As the DEOs (Group 'B' and 'C') in Column 12(b) under the
feeder category were not considered for promotion, they had filed
O.A.No.495 of 2003 before the Central Administrative Tribunal (CAT)
seeking for a relief that they should also be considered for promotion to the
post of Inspector (Examiner) along with the other feeder categories in 12(a).
4.12. By Order dated 04.09.2003, the O.A.No.495 of 2003 filed by
the DEOs falling under 12(b) came to be allowed by the Tribunal with the
observations that both the persons under 12(a) and 12(b) can be
simultaneously considered even for the first two years and thereby set aside
the circular dated 10.06.2003, further holding that the vacancies that are
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W.P.Nos.20743 & 20744 of 2010 &
sought to be filled are only the vacancies that arose under cadre
restructuring.
4.13. The order of the Tribunal was challenged by the erstwhile
ministerial staff, UDC's placed under 12(a) before this Court in
W.P.No.28333 of 2003. Even though initially an order of status quo was
granted, ultimately by order dated 14.10.2008 the writ petition was
dismissed confirming the orders of the Tribunal thereby allowing both the
erstwhile ministerial staff (UDC) and the erstwhile DEOs who are all
redesignated as STA to be considered for promotion to the post of Inspector.
4.14. In the meantime, the orders passed in O.A.No.495 of 2003 by
CAT was taken note in the case of similarly placed STAs and the Bombay
High Court by order dated 17.10.2003 had passed orders on similar lines as
decided by the CAT. The decision of the Bombay High Court was also
challenged before the Hon'ble Supreme Court and by order dated
09.02.2004, the SLPs in Appeal (Civil) Nos.2203 to 2204 of 2004 were
dismissed confirming the decision of the Bombay High Court and pursuant
to which, the decision of the Bombay High Court was also implemented on
10.03.2004 and the STAs working in the Bombay Customs Office who were
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W.P.Nos.20743 & 20744 of 2010 &
redesignated from erstwhile DEOs were granted promotion as Inspector
(Preventive Officer).
4.15. However, dehors the same, the Chennai Customs Department
by proceedings dated 20.10.2003 promoted persons to the post of Inspector
(Examiner) both on regular basis and also on ad-hoc basis by only
considering the candidates in Clause (a) of Column 12 i.e., erstwhile
ministerial staff (UDC) redesignated as STA / TA. However, these
promotions were made subject to the result of the writ petition pending as on
that date in W.P.No.28333 of 2003.
4.16. In the meantime, the erstwhile ministerial staff, UDCs who
were redesignated had challenged the Rule 5 of STA Recruitment Rules
2003 which governed the inter-se seniority among the erstwhile posts in the
newly formed posts of STA / TA. The Tribunal by order dated 30.12.2003
allowed the O.A. and set aside Rule 5 by which DEOs were placed as
seniors to the ministerial staff.
4.17. The Customs Department eventually accepted the decision of
the Bombay High Court as confirmed by the Hon'ble Supreme Court in
respect of allowing both the ministerial staff under under Column 12(a) and
the erstwhile DEOs under Column 12(b) to be simultaneously considered for
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W.P.Nos.20743 & 20744 of 2010 &
promotion and by proceedings dated 04.10.2004 directed all the
Commissionerates to implement the said decision. In view of this
proceedings of the Department dated 04.10.2004 taking a policy decision to
implement the judicial pronouncement in all the Commissionerates, the issue
was settled by making the erstwhile DEOs redesignated as STAs eligible to
be considered for promotion in the restructured posts along with the
erstwhile ministerial staff.
4.18. In fact, the Department had earlier challenged the decision of
the CAT in O.A.No.495 of 2003 by preferring W.P.No.31245 of 2003.
However in view of the above decision of CBEC dated 04.10.2004, by order
dated 19.10.2004 the Department withdrew the writ petition in
W.P.Nos.31245 and 31246 of 2003 challenging the orders passed by the
CAT in O.A.No.495 of 2003.
4.19. However, the ministerial staff association of the Department
filed W.P.No.31478 and 31479 of 2004 challenging the CBEC instruction
dated 19.10.2004 before this Court and obtained an interim order and
thereby the instruction was not implemented in Tamil Nadu alone. However
by orders dated 15.06.2009, this Court had ultimately dismissed both the
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writ petitions filed by the Association challenging the CBEC instruction
dated 19.10.2004 in view of the orders passed in W.P.No.28333 of 2003.
4.20. While so, in a writ petition filed before the Andhra Pradesh
High Court in W.P.No.7963 of 2004, by order dated 02.03.2005 the Andhra
Pradesh High Court held that the vacancies in the cadre of Inspector arising
prior to coming into force of the new Recruitment Rules on 07.12.2002 have
to be filled up in accordance with the earlier 1979 Recruitment Rules. The
decision of the Andhra Pradesh High Court was challenged by the DEOs
before the Hon'ble Supreme Court and when notices were issued and the
SLP was pending, the CBEC issued proceedings dated 26.09.2005 directing
all the Commissionerates to implement the decision of the Andhra Pradesh
High Court. By a clarification dated 17.05.2006, CBEC issued instructions
in respect of the manner of implementation whereby all the vacancies in
existence in the post of Inspector / PO or EO prior to the date of
restructuring i.e. 07.12.2002 shall be filled as per the 1979 Recruitment
Rules.
4.21. In the meantime, some of the STAs were promoted as Inspector
(Examiner) on 17.01.2006 and they have challenged the applicability of the
circular dated 17.05.2006 in respect of the Chennai Commissionerate in
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O.A.No.511 of 2006. The O.A. was disposed of on 05.02.2007 holding that
the cadre strength of the Inspector (PO) was fixed at 220 and the assessment
has to be restricted to that alone.
4.22. The erstwhile DEOs had challenged the orders of the Tribunal
in O.A.No.538 of 2003 whereby the inter-se seniority under Rule 5 was set
aside in W.P.No.8361 of 2005. However, by order dated 13.04.2007, the
Division Bench of this Court dismissed the writ petition confirming the
orders of the Tribunal. The decision of this Court was challenged before the
Hon'ble Supreme Court and by interim order dated 04.04.2008, the Hon'ble
Supreme Court ordered that the STA and TA Recruitment Rules have to be
given effect to and any promotion made on that basis would be subject to the
result of the SLP. The erstwhile ministerial staff also challenged the orders
passed in W.P.No.28333 of 2003 in SLP No.22916 of 2009 and notices were
issued.
4.23. The ministerial staff filed O.A.No.429 of 2009 to restrain the
Department from reviewing the DPC of 2003 and to regularise their ad-hoc
promotion from 20.10.2003. The STAs from the erstwhile DEOs also filed
O.A.No.12 of 2010 seeking to restrain the Department from making any
further promotions to the post of Appraisers. Both the O.As were heard
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W.P.Nos.20743 & 20744 of 2010 &
together and the Tribunal by order dated 03.09.2010 allowed O.A.No.429 of
2009 and dismissed O.A.No.12 of 2010. The Tribunal had also held that the
applicants in O.A.No.12 of 2010 are not entitled to be considered for
notional promotion as Inspector (Examiner) w.e.f. 20.10.2003 till the issue
is finally decided by the Hon'ble Supreme Court. As against the common
order passed by the Tribunal, the above three Writ Petitions have been
preferred by the respective parties as indicated earlier.
4.24. Immediately after the orders were passed by the Tribunal, the
Department had effected promotions to some of the persons to the post of
Appraisers and since when the writ petitions were entertained on 08.09.2010
an order of status quo was passed as on 03.09.2010, the promotions granted
on 07.09.2010 were recalled.
4.25. Subsequently, by order dated 08.03.2011, the interim orders
were also modified to the effect that all eligible persons are entitled to be
considered as Customs Appraisers which would be subject to the result of
the writ petitions. Inspite of the modification of the interim order, even
though the STAs redesignated from erstwhile ministerial staff were
considered and promoted to Appraisers, the STAs redesignated from the
erstwhile DEOs were not considered for promotion. Only on 19.12.2014,
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W.P.Nos.20743 & 20744 of 2010 &
these persons were considered and promoted to the post of Customs
Appraisers w.e.f. 30.09.2014.
4.26. While so, in the SLPs filed challenging the decision of this
Court in confirming the orders of the Tribunal by setting aside the inter-se
seniority as under Rule 5 of STA Recruitment Rules 2003, by order dated
26.03.2015, the Hon'ble Supreme Court allowed the SLP as reported in
(2015) 6 SCC 727, whereby the Rules providing for inter-se seniority for the
newly created posts of Inspector PO/EO were upheld. Further the SLP
No.22917 of 2009 filed by the ministerial staff challenging the order in
W.P.No.28333 of 2003 was also dismissed by the Hon'ble Supreme Court
by order dated 24.10.2017, and reported in (2018) 13 SCC 193.
4.27. While the issue stood thus, the SLPs filed challenging the
decision of the Andhra Pradesh High Court came to be disposed of by the
Hon'ble Supreme Court by order 05.02.2020 in Civil Appeals Nos.1970 to
1975 of 2009. The Hon'ble Supreme Court held that the decision of the
Andhra Pradesh High Court was in error as the promotion to vacancies
existing prior to 07.12.2002 and which were not filled up cannot be made as
under the Recruitment Rules 1979 but had to be made only in accordance
with the 2003 Rules.
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W.P.Nos.20743 & 20744 of 2010 &
4.28. However, the Hon'ble Supreme Court, by considering the fact
that the promotions had been effected during the pendency of these appeals,
did not disturb the promotions effected but had directed that the cadre
restructuring vacancies to be filled up in accordance with the new 2003
Rules considering both the cadre from feeder category in Col.12(a) and
Col.12(b) of the new rules and further directed notional promotions with
seniority to be accorded to those persons who have not been considered for
promotion as on that date.
5. Mr.Karthik Rajan, learned counsel for the petitioners in
W.P.No.27473 of 2010 and 27474 of 2010 argued that, even though earlier
the feeder category with regard to the posts of Inspector (Examiner /
Preventive Officer) was governed by the 1979 Rules, pursuant to the
restructuring in the Department, the ministerial cadre and the DEOs cadre
were merged and the posts of STAs and TAs were created for which
separate Recruitment Rules have been framed in the year 2002-2003
respectively.
5.1. It is his contention that the petitioners were redesignated as
STAs and the posts of STAs have been included in the feeder category for
promotion to the post of Inspector (Examiner) in view of Column 12 of the
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Recruitment Rules. Further, as per Rule 5 of the Recruitment Rules dated
16.01.2003, the petitioners who were under Grade ‘B’ and ‘C’ and appointed
as STAs are placed higher in the seniority list than the other categories of the
posts which got merged with the STAs and TAs.
5.2. He further contended that in fact after the posts of STAs were
created on 15.01.2003, the promotions were called for on 10.06.2003 in
which the petitioners ought to have been allowed to be considered along
with the category of persons under Column 12(a) simultaneously as the
vacancies called for in the promotions are all restructured vacancies. By
placing reliance on the proceedings dated 05.06.2002 issued by the
Department, he asserted that the restructured vacancy for the Chennai
Commissionerate for Inspector (Examiner) was in fact reduced from 79 to
49 and for Inspector (Preventive Officer) it was reduced from 266 to 220
with a direction that the cadre restructured vacancies shall not be filled.
5.3. It is his further contention that there had been a spate of
litigations initiated by the erstwhile ministerial staff who were redesignated
as STAs / TAs and also the petitioners seeking promotion to the post of
Inspector (Examiner / Preventive Officer). The bone of contention in almost
all the litigation was as to whether the petitioners who became STAs and
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placed under Column 12(b) could be simultaneously considered along with
the ministerial staff redesignated as STA / TA who are placed under Column
12(a).
5.4. He contended that the issue was ultimately decided by the
decision of the Hon’ble Supreme Court dated 05.02.2020 wherein it has
been held that all the cadre restructured vacancies have to be filled in
accordance with the new rules by considering the feeder categories both in
Column 12(a) and 12(b) simultaneously.
5.5. He further submitted that the fixation of inter-se seniority based
on Rule 5 of the 2003 Rules which, even though was set aside by the
Tribunal and confirmed by the High Court, was ultimately upheld by the
decision of the Hon’ble Supreme Court dated 26.03.2015 reported in (2015)
6 SCC 727. In such event, the learned counsel asserted that when it has been
settled that the erstwhile DEOs redesignated as STAs like the petitioners
would rank senior to the erstwhile ministerial staff UDC redesignated as
STA / TA in view of the Rule 5 and further it has been settled that both the
STAs placed under Column 12(a) and 12(b) are to be considered
simultaneously for promotion, the promotions illegally given to the private
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respondents in the writ petitions who were erstwhile ministerial staff, which
was only subject to pendency of those litigations ought to be reversed.
5.6. However, the learned counsel also submitted that in view of the
settled decision of the Hon’ble Supreme Court, even though the petitioners
have been given promotion to the post of Inspector and subsequently also to
the post of Appraiser at later dates, they are entitled to be promoted w.e.f.
20.10.2003 on notional basis and considered for the further promotion to the
post of Customs Appraiser and be given effect to. In view of the above,
decision of the Tribunal in allowing the O.A. filed by the private
respondents cannot be sustained he contended and sought for indulgence of
this court.
6. Ms.Y.Kavitha, learned counsel for the private respondents
argued that the private respondents were all working in the ministerial cadre
as LDC / UDC/ TA, who alone were placed under the feeder category to be
promoted to the post of Inspector as governed by 1979 Rules and even when
the cadres were merged and the cadre restructuring took place, still the
respondents are entitled to be promoted to the post of Inspectors as the
vacancies were in respect to the pre-restructuring vacancies. It is her further
contention that when the vacancies arose in the year 2001, the petitioners
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herein who were only borne in the cadre for the post of STAs on 20.01.2003
cannot stake a claim to the post of Inspector by having a march over these
respondents.
6.1. The learned counsel contended that only since these
respondents were eligible to be promoted in the precadre restructuring
vacancies and further even as per the new rule, the promotion of the
respondents who were placed under Column 12(a) will be operative for a
period of 2 years from the date on which the restructure cadre came into
existence, the respondents had been rightly considered and promoted.
6.2. The learned counsel further submitted that the promotions of
the respondents had also been regularised pursuant to the directions of the
Hon’ble Supreme Court reported in (2018) 13 SCC 193. Further the learned
counsel contended that all these promotions have been effected to these
respondents long before and in fact they have also retired from service from
the respective promoted posts. Therefore, the order of the Tribunal is
perfectly justified she contended and sought for dismissal of the writ
petition.
7. Mr.A.P.Srinivas, learned Senior Standing Counsel for the
official respondents and also the petitioners in W.P.No.4669 of 2011
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submitted that the promotions had been effected only pursuant to the
notifications issued and also the rules framed. It is his further contention that
the inter-se seniority fixed under Rule 5 was set aside by the Tribunal and
confirmed by this Court and further the Andhra Pradesh High Court had
directed the respondent Department to give promotion to the post of
Inspector based on the 1979 Rules, holding that the vacancy that had arisen
to this post prior to 20.01.2003 ought to be filled only by the 1979 Rules that
was in force.
7.1. He further contended that the Department had issued Circular to
implement the decision of the Andhra Pradesh High Court based on which
the promotions have been effected and the private respondents i.e., the
erstwhile ministerial staff who were redesignated as STA / TA were
promoted to the post of Inspector. He further contended that the vacancies to
which the private respondents were promoted are the precadre restructuring
vacancies and when the DEOs were borne in the cadre only on 20.01.2003,
they cannot claim to be promoted to those vacancies and their claim of
promotion has been considered to those vacancies when they became
entitled and they have also been promoted subsequently.
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7.2. It is his further contention that in fact based on the vacancies
that arose and following the circular issued by the Department, the
Commissionerate had issued the ad-hoc promotions and subsequently
pursuant to the directions by the Hon’ble Supreme Court, the services had
also been regularised which they are legally entitled to and submitted that
the petitioners in the other writ petitions who were erstwhile DEOs are not
entitled for the promotion from 20.10.2003 but only entitled to the date they
have been actually promoted and sought for suitable orders to be passed in
these cases.
8. Heard the submissions of the respective counsels and perused
the materials available on record.
9. Originally in the Customs Department, there were two sets of
cadres, one ministerial cadre and the other Technical cadre - Group ‘C’
posts. The ministerial staff were incharge of the clerical work and the
technical officers were incharge of the Data Entry work in computers. The
DEOs in one cadre and UDC/LDC, TAs, UDC Special Pay under the
ministerial cadre were all functioning separately under different set of
Recruitment Rules and they had different promotional avenues and pay
structures.
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10. In the erstwhile regulations, the posts of Inspector (Examiner
and Preventive Officer) were governed under the 1979 Rules. Only the
ministerial cadre was the feeder category for promotion to the post of
Preventive Officer and Examiner which was later redesignated as Inspector
(Preventive Officer), Inspector(Examiner), in which the DEO cadre were not
eligible to be promoted as they were not placed under the feeder category.
11. A major restructuring of the cadres took place in the Central
Board of Excise and Customs Department in the year 2002. In the cadre
restructuring, both the ministerial and technical cadres were merged and two
new cadres were formed by redesignating those cadres as Senior Tax
Assistant (STA) and Tax Assistant (TA). In the cadre restructuring, the post
of Assistant, TA, UDC Special Pay in the erstwhile ministerial cadre and the
post of DEO (Grade ‘B’) and DEO (Grade ‘C’) in the technical cadre were
merged and redesignated as STA with a basic pay of 5000-8000. The post of
UDC and LDC ministerial cadre and DEO Grade ‘A’ in the technical cadre
were merged together and formed new Tax Assistant cadre with a basic pay
of 4000-6000.
12. In the restructuring process, the Recruitment Rules for the post
of Inspector (Examiner) was framed on 29.11.2002 as referred earlier and as
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per Column 12 of these Rules, the feeder category for promotion to the post
of Inspector were from the post in pre-restructured cadres under 12(a) and
the candidates in the post in restructured cadres in 12(b) and failing which,
the categories as mentioned in Column 12(c).
13. The private respondents who were working as UDC in the post
under the erstwhile ministerial cadre, who were redesignated as STAs, were
even originally entitled to the promotion to the post of Inspector as they had
been placed under the feeder category under the old 1979 Rules. Even
pursuant to the new Rules, they are placed under the feeder category under
Column 12(a) which shall be operative for a period of 2 years from the date
on which the restructured cadre mentioned in Clause (b) comes into
existence.
14. While so, the Recruitment Rules to the posts of STAs was
issued on 16.01.2003 and gazetted on 20.01.2003. As such, the new post of
STA was technically borne on the cadre as on 20.01.2003 by merging the
LDC / UDC / TA and DEOs as indicated earlier. In the Senior Tax Assistant
(Group-C posts) Recruitment Rules 2003, Rule 5 prescribes the initial
constitution as extracted earlier which provides for inter-se seniority among
the posts and cadres from which they are merged.
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15. After the proposal of cadre restructuring in the Central Excise
Department was approved, the staff strength for each of the
Commissionerates was identified and the Government issued the revised
cadre allocation on 05.06.2002. In the annexure to the proceedings, 220
vacancies to the posts of Inspector (Preventive Officer) and 49 vacancies to
the posts of Inspector (Examiner) had been identified as the vacancies in the
Chennai Commissionerate, under cadre restructuring.
16. In fact, when the Department issued Circular No.41 of 2003
dated 10.06.2003 for filling up the vacancies to the post of Inspector PO/EO
and the same was challenged by the petitioners in O.A.No.495 of 2003, the
CAT by order dated 04.09.2003 while allowing O.A. and declaring that the
petitioners are eligible for promotion to the post of Inspector (Examiner) and
directing the Department to consider them along with the other feeder
categories for promotion, it has been clearly extracted in para 20 of the order
that Circular dated 10.06.2003 issued for filling up vacancies is for only the
vacancies that arose after cadre restructuring, pursuant to the rules being
notified. The relevant para is extracted hereunder:-
“20.It is neither pleaded in the reply filed nor contended during the
course of oral arguments that the vacancies which are sought to be filed
by respondents by issuing Circular No.41/2003 dated 10.06.2003 are
those vacancies which arose prior to the promulgation of the RRs for the
post of Inspector (Preventive Officer/Examiner). In the absence of such
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stand, no doubt can be raised that the vacancies for which options have
been sought by the impugned communication arose after the new rules
were notified.”
17. In view of the above, neither the private respondents nor the
Department can now take a stand that the vacancies that were sought to be
filled up pursuant to Circular No.41/2003 dated 10.06.2003 were the
vacancies that arose prior to cadre restructuring. Therefore, the vacancies
being that arose after cadre restructuring are to be governed as per the new
2003 Rules.
18. After the promulgation of the Recruitment Rules for the post of
Inspector (Examiner), feeder category for promotion to the post of Inspector
is contained in Column 12. Column 12(a) pertains to selection from those of
the candidates working under different posts under pre-restructured cadres
from the erstwhile ministerial cadre. As per Column 12(b), it is in respect of
the selection from those candidates working in the restructured cadres
mentioned therein, failing which the category under Column 12(c) will be
considered. In view of the note contained in Column 12, the promotion from
the category under Clause (a) shall be operative only for a period of 2 years
from the date on which restructured cadre mentioned under Clause(b) comes
into existence.
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19. In fact as noted above, the erstwhile DEOs who were
redesignated as STAs who come under Column 12(b) were entitled to be
considered for promotion along with the candidates under 12(a) to the post
of Inspector. When the circular was issued in Circular No.41/2003 dated
10.06.2003 whereby only the candidates from the erstwhile ministerial staff
contained in Column 12(a) were called for to be considered for promotion,
the petitioners had preferred O.A.No.495 of 2003 challenging the Circular
and also for consequential direction to consider the petitioners also for
promotion along with the candidates in Column 12(a). By order dated
04.09.2003, O.A.No.495 of 2003 came to be allowed by which the official
respondents were directed to consider the petitioners also along with the
other categories for promotion to the post of Inspector (Examiner) and the
Circular was set aside.
20. Though the petitioners succeeded before the Tribunal, the
private respondents therein from the ministerial staff had filed
W.P.No.28333 of 2003 before this Court. While the writ petition was
pending, the Department by proceedings dated 20.10.2003 had promoted
candidates to the post of Inspector (Examiner) on regular basis and further
also on ad-hoc basis by applying Column 12(a) alone. The private
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respondents herein are among those who were promoted, but however all
these promotions were made only subject to the outcome of the writ petition.
21. Ultimately this writ petition was dismissed by the order of this
court dated 14.10.2008 confirming the orders of the Tribunal holding that
both the candidates under Column 12(a) and 12(b) have to be considered
simultaneously. Further the appeal preferred before the Hon’ble Supreme
Court challenging the orders of the Division Bench of this Court in
S.L.P.No.22917 of 2009 was ultimately dismissed by the decision of the
Hon’ble Supreme Court dated 24.10.2017 reported in (2018) 13 SCC 193. In
effect, the petitioners herein are eligible to be considered for promotion
w.e.f. 20.10.2003 along with the candidates, particularly the private
respondents herein, who were in the feeder category under Column 12(a).
22. In fact, even when the decision was rendered by the Tribunal in
O.A.No.495 of 2003 dated 04.09.2003, taking note of that decision, the
Bombay High Court in an identical issue arising from the Bombay Bench of
CAT, by order dated 17.10.2003, has decided on similar lines approving the
orders of the CAT, Chennai. As against the decision of the Bombay High
Court, appeals were preferred before the Hon’ble Supreme Court in
S.L.P.(C)Nos.2203 to 2204 of 2004, which were ultimately dismissed by
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order dated 09.02.2004. The decision of the Bombay High Court was
implemented in respect of the STAs in Bombay Customs Office and by
proceedings dated 10.03.2004, STAs who were designated from the
erstwhile DEOs were promoted to the post of Inspector (PO).
23. After the decision of the Bombay High Court was confirmed by
the Hon’ble Supreme Court, the CBEC by proceedings dated 04.10.2004
had decided to implement the decision and had issued proceedings to all the
Commissionerates for All India Implementation. The relevant portion of the
circular of CBEC dated 04.10.2004 is extracted hereunder:-
“2. A Special Leave Petition (SLP) filed by the ministerial
employees in the Hon'ble Supreme Court against Mumbai High Court
judgement dated 17.10.2003 was dismissed by the Hon'ble Supreme
Court. After dismissal of SLP filed by the Ministerial employees, it was
decided to implement the judgement of Hon'ble High Court in the case of
47 applicants to the Writ Petitions No.6857/2003 and 6958/2003.
3. Later, various Benches of CAT as well as High Court have
allowed the petitions in favour of the applicants (erstwhile Data Entry
Operators) reiterating the decisions of other Benches of CAT and Hon'ble
Mumbai High Court decision. Considering that the judgement of the
Mumbai High Court though delivered in Writ Petition filed by 47 officers
of Mumbai Custom addressed an issue having all-India ramification, the
Board has decided that the ratio of the Mumbai High Court decision
should be applied to all cases. Further, CAT judgements passed relying
on Mumbai High Court Judgement should also be on accepted,
particularly since, the Branch Secretariat, Mumbai, Ministry of Law and
Justice has opined on 21.7.2004 not to file any appeal against the CAT
decision in O.A.No.632/2003 filed by Shri K.A.Jaisinghania, Data Entry
Operator before the CAT Bench, Mumbai and the Special Leave Petition
filed by the ministerial employees against Mumbai High Court judgement
dated 17.10.2003 has also been dismissed by Hon'ble Supreme Court.
4. It is, therefore, requested that in the light of the above decision
of the Board, you may implement the judgments of various Benches of
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CAT which are in accordance with the Mumbai High Court decision in
Writ Petition No(s).6957/2003 and 6958/2003. You may also take
necessary action to concede the cases where the Department has filed
appeal in High Court against CAT's decision based on aforesaid
judgement of Mumbai High Court.”
24. In view of the above circular of CBEC dated 04.10.2004 to
accept the decision and implement the same in respect of the DEOs who
were redesignated as STAs and further withdraw the cases filed by the
Department and pending before CAT and High Courts, the Department
which had earlier challenged the orders of the Tribunal in O.A.No.495/2003
separately in W.P.Nos.31245 and 31246 of 2003, had withdrawn the writ
petitions and the same were dismissed on 19.10.2004.
25. As referred earlier, the Recruitment Rules for the post of STAs
was issued on 16.01.2003 and as per Rule 5 which deals with the initial
constitution, the petitioners herein were placed as seniors to the private
respondents in view of the inter-se seniority fixed among the merged cadres.
The erstwhile ministerial staff as such had challenged the Rule 5 governing
the inter-se seniority before the CAT, Chennai in O.A.No.558/2003. By
order dated 30.12.2003, O.A.No.558/2003 was allowed and the rule
governing the inter-se seniority was set aside.
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26. The decision of the Tribunal was confirmed by the orders of
this Court dated 13.04.2007 in W.P.No.8361 of 2005. However in the appeal
filed before the Hon’ble Supreme Court, by order dated 26.03.2015 in Civil
Appeal Nos.2485-2490 of 2010 batch, reported in (2015) 6 SCC 727 [Dhole
Govind Sahebrao v. Union of India], the orders of the Tribunal as
confirmed by this Court was set aside, whereby the Rule providing for inter-
se seniority among the erstwhile posts in the newly created cadres was
upheld. Para 52 and 53 of the decision is extracted hereunder:-
“52. It is in the background of the aforesaid submission advanced at the
hands of the learned counsel, that we would consider the validity of the
merger of cadres contemplated by Rule 4 of the 2003 TA Rules and Rule 5
of the 2003 STA Rules. The position in the present controversy is not
comparable to the position examined by this Court in the judgments
referred to hereinabove. It needs to be understood, that the cadre of Data
Entry Operators, was created out of the original Ministerial Cadre. It is,
therefore apparent, that the members of the two cadres were originally
discharging similar duties. It is only as a consequence of the
administrative decision to computerise the functioning of the Customs and
Central Excise Department, that a separate cadre of Data Entry
Operators came to be created. The newly created cadre, exclusively
functioned towards giving effect to the decision to computerise the
functioning of the Department. There was thereafter a division of duties
discharged by the original members of the Ministerial Cadre. One cadre
of employees exclusively thereafter discharged procedural duties of the
Department, whereas, the other cadre of employees exclusively thereafter
discharged duties aimed at computerisation of the functioning of the
Department. Even though, it is apparent, that the Data Entry Operators
exclusively functioned towards the process of computerisation of the
functioning of the Customs and Central Excise Department, yet that could
not be possible without their existing experience in the erstwhile
Ministerial Cadre. Consequent upon the merger of posts, consequent upon
the promulgation of the 2003 TA Rules and the 2003 STA Rules, the
nature and duties of the two cadres were combined. Consequent upon
their appointment as Tax Assistants and Senior Tax Assistants, members
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of the erstwhile Ministerial Cadre, and members of the cadre of Data
Entry Operators, were required to perform both procedural duties and
duties relating to Computer Applications. The deficiencies in the two
cadres sought to be merged, were sought to be overcome, by subjecting
the members of the two cadres to different examinations, whereby, the two
cadres were trained for discharging their duties efficiently, on merger,
whilst holding the posts of Tax Assistants/Senior Tax Assistants. It is,
therefore, not possible for us to accept, that there was any serious
difference between the two merged cadres, either on the issue of nature of
duties, or on the subject of powers exercised by the officers holding the
post, or the extent of territorial or other charge held, or responsibilities
discharged by them, or for that matter, the qualifications prescribed for
the posts. On account of the aforesaid, by and large similarity, we are
satisfied, that the merger of the cadres, and the determination of the inter
se seniority on merger, were justifiably determined, on the basis of the
different pay scales of the cadres merged, under the 2003 TA Rules and
the 2003 STA Rules. By the mandate of the above Rules, all the posts in
equivalent pay scales were placed at the same level. Posts in the higher
scale of pay, were given superiority on the subject of inter se seniority,
with reference to posts in the lower scale of pay. In our considered view,
the above determination, at the hands of the rule-framing authority, on the
issue canvassed before us, cannot be termed either arbitrary or
discriminatory. We are, therefore satisfied in concluding, that the
provisions of Rule 4 of the 2003 TA Rules and Rule 5 of the 2003 STA
Rules, cannot be faulted on the touchstone of Articles 14 and 16 of the
Constitution of India.
53. For all the reasons recorded hereinabove, we are satisfied, that the
different orders passed by the Administrative Tribunal, and the common
order dated 13-4-2007 [S. Lakshmi v. State of T.N., 2007 SCC OnLine
Mad 1264, decided on 13-4-2007 (Mad)] passed by the High Court, are
liable to be set aside. The same are accordingly hereby set aside. The
appeals filed by those who moved to the cadre of Data Entry Operators
from the Ministerial Cadre, and were thereupon amalgamated in the
cadre of Tax Assistants/Senior Tax Assistants, are allowed. The connected
appeals preferred by the Union of India, are also allowed. In the above
view of the matter, the authorities shall give effect to Rules 4 and 5 of the
2003 TA Rules and the 2003 STA Rules, respectively, without any further
delay.”
27. As such, the petitioners herein who rank as seniors in the post
of STAs as on 20.01.2003 in view of the Rule 5 will be entitled to be
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considered for promotion prior to that of all private respondents herein who
had been given promotion on 20.10.2003.
28. Inspite of these proceedings, when the CBEC has issued
circular dated 04.10.2004 for All India Implementation of the decision of the
Bombay High Court as confirmed by the Hon’ble Supreme Court to allow
the claim of the DEOs redesignated as STAs and based on which they had
also withdrawn the writ petition filed by them challenging the orders of the
Tribunal in O.A.No.495/2003, the ministerial staff association had
challenged the CBEC instructions dated 04.10.2004 in W.P.No.31478 and
31479 of 2004 and obtained an interim order. In view of the same, the
decision was not implemented in the State of Tamil Nadu alone and the
petitioners herein were not considered or promoted.
29. In the meantime, in a proceedings initiated by the ministerial
staff, the Andhra Pradesh High Court by order dated 02.03.2005 in
W.P.No.7963 of 2004 had held that all the vacancies in the cadre of the
Inspector arising prior to coming into force of the new Recruitment Rules
have to be filled only in accordance with the earlier 1979 Rules.
30. The DEOs had challenged the decision of the Andhra Pradesh
High Court before the Hon’ble Supreme Court. However, the CBEC by a
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further circular dated 26.09.2005 had directed the Commissionerates to
implement the direction in the decision of the Andhra Pradesh High Court.
Further by another circular dated 17.05.2006, the CBEC clarified the manner
in which the decision has to be implemented i.e., all vacancies in the post of
Inspector (PO) or (EO) only prior to the date of restructuring i.e., 07.12.2002
were to be filled up in accordance with the old Rules.
31. This circular was also challenged by the DEOs before the CAT,
Chennai in O.A.No.511 of 2006 and the Tribunal by order dated 05.02.2007
disposed of the applications recording a fact that there was a reduction of
cadre strength on 05.06.2002 for the post of Preventive Officer from 266 to
220 and the assessment of vacancies has to be restricted to this 220 only.
32. However in the appeal preferred challenging the decision of the
Andhra Pradesh High Court in the case of D.Raghu & Ors v.
R.Basaveswarudu & Ors, reported in (2020) 18 SCC 1, the Hon’ble
Supreme Court held that the decision of the Andhra Pradesh High Court was
in error, but however did not disturb the promotions that have been effected
based on the decision, during the pendency of the appeals.
33. The Hon’ble Supreme Court directed that all the cadre
restructuring vacancies have to be filled up in accordance with the new rules
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by considering the feeder categories both under Column 12(a) and 12(b) and
notional promotions with seniority has to be accorded to those who were not
considered. Para 128 to 130 of the decision is usefully extracted hereunder:-
“128. In such circumstances, there is no scope for any ambiguity and we
are unable to find fault with the order [S.S.L. Narayana v. Central Board
of Excise & Customs, 2005 SCC OnLine AP 1231] of the High Court.
Summary of conclusions in CAs Nos. 1970-75 of 2009
129. Summary of conclusions in CAs Nos. 1970-75 of 2009, is as follows:
129.1.Promotion to the post of Inspector was governed by the 1979
Rules till 7-12-2002.
129.2. Under the 1979 Rules, Data Entry Operators were not among
the feeder categories for promotion as Inspector.
129.3. By 19-7-2001, the Cabinet approved restructuring of certain
posts including the post of Inspector. The number of posts of
Inspector fell from a little over 22,000 to a little over 18,000.
Thereunder, the post of Data Entry Operator Grade ‘B’ among
other categories, were merged and the cadre of Senior Tax
Assistants emerged. However, the restructured cadre of Senior Tax
Assistants, did not come into being.
129.4. The restructured cadre of Senior Tax Assistants was born
with the bringing into force of the Senior Tax Assistant Rules, 2003,
on 20-1-2003. Data Entry Operators Grade ‘B’, among other
categories, were redesignated as Senior Tax Assistants under Rule
129.5. The Inspector Rules, 2002, were brought into force on 7-12-
2002 superseding the 1979 Rules relating to Inspectors.
129.6. The post of Senior Tax Assistant, which was not among the
feeder categories under the 1979 Rules, became one of the feeder
categories for promotion as Inspector, under the Inspector Rules,
2002 under clause (b) of Column 12.
129.7. There was a ban of promotion to the posts of Inspector. This
is clear from communications dated 10-9-2001, 3-1-2002 and 5-6-
2002. The communication dated 28-10-2002 read with
communication dated 14-11-2002, establish that the draft
Recruitment Rules which were finalised on 29-11-2002 and brought
into force on 7-12-2002 as far as Inspectors are concerned and
draft Recruitment Rules finalised and brought into force on 20-1-
2002 as far as Senior Tax Assistants are concerned, were to be basis
for promotion to the post of Inspector. As per order dated 28-10-
2002, Departmental Promotion Committee (“DPC”), was to
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operate, based on the draft Rules but no promotion orders were to
be issued till the draft Rules were finalised. With order dated 4-11-
2002 even the promotion orders were permitted. The authority
apparently contemplated simultaneous bringing into force of the
Inspector Rules and the STA Rules.
129.8. The High Court [R. Basaveswarudu v. Union of India, 2005
SCC OnLine AP 163 : (2005) 5 ALT 252] was in error in holding
that it has to be necessarily held that the vacancies which arose
prior to the revised Recruitment Rules coming into force has to be
filled up under the then existing Rules (the 1979 Rules) relying upon
case law including Y.V. Rangaiah [Y.V. Rangaiah v. J. Sreenivasa
Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382] . There was a
conscious decision taken to not fill up vacancies based on the
restructuring, and what is more, letters dated 28-10-2002 and 14-
11-2002 show that promotion to the post of Inspector was to be
effected based on the new Recruitment Rules.
129.9. It is while so, that in the Hyderabad Commissionerate, by
Notice dated 5-11-2002, persons falling under clause (a) of Column
12 of the Draft Inspector Rules who also corresponded to the feeder
categories under the “extant” statutory rules, the 1979 Rules, alone
were called for selection as Inspector.
129.10. The benefit of reckoning service under Note 1 to categories
in clause (a) would be available only after the restructuring came
into effect which was on 20-1-2003. This also indicates that the
powers that be contemplated simultaneous operation of the
Inspector Rules and the Senior Tax Assistant Rules.
129.11. However, the Inspector Rules and the Senior Tax Assistant
Rules were enforced with a gap of about six weeks.
129.12. The appellants even proceeding on the basis that they were
to be treated as Senior Tax Assistant as on 7-12-2002, were not
having the two years' experience required under the 2002 Inspector
Rules.
129.13. With the 2003 Senior Tax Assistant Rules brought into force
on 20-1-2003 under Rule 5(1), the appellants who were working as
Data Entry Operators Grade ‘B’ could take into consideration their
service as Data Entry Operators Grade ‘B’ for reckoning the period
of two years stipulated under the 2002 Inspector Rules. In this
regard, the finding of the Tribunal is correct. The appellants in OA
have stated that they were promoted as Data Entry Operator Grade
‘B’ in April 2000. If so, their service as such would count and even
as on 7-12-2002, they would have 2 years' service as contemplated
under the 2002 Rules. As on 20-1-2003, certainly, they would be
eligible to be considered for promotion as Inspectors.
https://www.mhc.tn.gov.in/judis
W.P.Nos.20743 & 20744 of 2010 &
129.14. The Tribunal not having granted Prayer 8(b), the Draft
Recruitment Rules, 2002 relating to Inspectors as finalised which
was impugned remained intact. The Tribunal clearly erred in
granting the declaration, as sought for in Para 8(c), recognising
exclusive right to the restructured cadre.
129.15. The restructuring order under letter dated 19-7-2001,
fructified and became complete and effective relating to the post of
Senior Tax Assistant only on 20-1-2003. The findings to the contrary
by the Tribunal stood correctly set aside by the High Court.
129.16. The Tribunal has not interfered with the promotion already
granted to persons drawn from the categories other than the Senior
Tax Assistant pursuant to the Notice dated 5-11-2002.
129.17. Ban of direct recruitment was to end on 31-12-2002. In
respect of promotion made earlier and not interfered with, the
Tribunal could not have directed review of seniority based on later
promotions as Inspector. The appellants cannot be given seniority
based on later promotions qua promotions given, which cannot be
termed illegal, when as on the date of earlier promotions, the
appellants were not even in the cadre. Promotion from Senior Tax
Assistant could have been made only 20-1-2003 at the earliest. Even
the categories in clause (a) could have been promoted under the
2002 Inspector Rules, vide Note 1 only for two years starting from
the date the restructured cadre in clause (b) came into force i.e. 20-
1-2003.
129.18. We reject the contention that persons in clause (a) of
Column 12 of the Rules, who were also in the feeder categories for
promotion under the 1979 Rules, had an exclusive right to be
considered for promotion for a period of two years.
129.19. While promotions can be made based on draft Recruitment
Rules, it cannot be so made, if the draft Rules are in the teeth of
existing statutory rules [V. Ramakrishnan [Union of India v. V.
Ramakrishnan, (2005) 8 SCC 394 : 2005 SCC (L&S) 1150] ]. In
this case, however, under orders dated 28-10-2002 and 14-11-2002,
what was contemplated was processing by DPC under the draft
Recruitment Rules and issue of the promotions orders after the draft
Rules were finalised.
129.20. However, till 7-12-2002, under the 1979 Rules, being also
feeder categories under the said Rules, those in clause (a) Column
12 of the 2002 Inspector Rules could be promoted. While it may be
contrary to what was contemplated by the Central Authority (as
evident from letters dated 28-10-2002 and 14-11-2002) promotions
were made, which could not be termed illegal. Even the Tribunal
has not set aside the promotions.
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W.P.Nos.20743 & 20744 of 2010 &
129.21. The High Court has directed [R. Basaveswarudu v. Union
of India, 2005 SCC OnLine AP 163 : (2005) 5 ALT 252] the filling
up of vacancies prior to 7-12-2002 as per the 1979 Rules. In this
regard, having regard to the fact that the vacancies were not filled
up as per the ban, as can be seen from 10-9-2001 and 5-6-2002, and
it was specifically contemplated under letter dated 28-10-2002 that
vacancies arising from restructuring be filled up, as per the new
Recruitment Rules, the principle in Y.V. Rangaiah [Y.V. Rangaiah v.
J. Sreenivasa Rao, (1983) 3 SCC 284 : 1983 SCC (L&S) 382] may
not apply and it was the Rules as on date of filling up the vacancies,
that would count. As on the date of the High Court order, the STA
Rules, 2003, had come into force on 20-1-2003. Thus, vacancies
existing prior to 7-12-2002 and which were not filled up, must be
filled up by considering STA (appellants) including their service as
Data Entry Operators Grade ‘B’.
129.22. But it is here that the impact of the matter remaining
pending, and in the meantime, implementation of the judgment and
what is more, further promotions being made cannot be lost sight of.
We bear in mind the principle laid down in Taherakhatoon
[Taherakhatoon v. Salambin Mohammad, (1999) 2 SCC 635] and
would not disturb the directions to fill up vacancies which arose
prior to 7-12-2002, as directed.
129.23. However, in case of vacancies of Inspector, which arose
after 7-12-2002, the appellants would, undoubtedly, have a right to
be considered as explained hereinbefore. In regard to such
vacancies, the matter must be looked into and seniority fixed, based
on Rule 5 of the STA Rules. The persons working in clause (a) are
also entitled to be considered for a period of two years from 20-1-
2003 under the Inspector Rules to be considered for promotion.
Relief in Civil Appeals Nos.1970-75 of 2009
130. Civil Appeals Nos. 1970-75 of 2009 are disposed of as follows : the
restructured cadre of Senior Tax Assistants came into force on 20-1-2003.
The appellants are not entitled to have seniority determined in respect of
vacancies of Inspector which arose prior to 7-12-2002. The appellants are
eligible to be considered for promotion from 20-1-2003 and they are
entitled to add their service as Data Entry Operator Grade ‘B’ for the
purpose of the 2002 Inspector Rules and considered for vacancies to be
filled by promotion, which arose after 7-12-2002. The persons in clause
(a) under Column 12 of the 2002 Rules, are also entitled to be considered
for two years from 20-1-2003. Seniority is to be considered based on Rule
5 of the STA Rules. The exercise, as above, if not carried out already shall
be carried out. Further promotions based on the above will be granted.
However, we direct that the promotions shall be notional where
promotions have already been effected, however, entitling the parties to
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W.P.Nos.20743 & 20744 of 2010 &
seniority and pensionary benefits. The above exercise shall be completed
at the earliest.”
34. In the instant cases, an argument is sought to be made based on
the averments in the additional reply statement of the Department that the
private respondents have been promoted on 20.10.2003 only in respect of the
vacancies that arose prior to cadre restructuring and thereby sought to
advance the promotion of the private respondents as Inspector (Examiner)
from 20.10.2003 to a date prior i.e.17.12.2002 and thereby operating the full
strength of 79 instead of 49 which was fixed in the cadre restructuring.
35. However, as referred in the earlier paragraphs, even when the
Tribunal decided O.A.No.495 of 2003 as early as on 04.09.2003, it has been
clearly held and observed that the vacancies in the post of Inspector (PO) or
(EO) that were sought to be filled by the respondents through Circular No.41
of 2003 dated 10.06.2003 are the vacancies that arose after the new rules
were notified which could be only the vacancies that arose in the cadre
restructuring.
36. Further by proceedings dated 05.06.2002 issued by the
Department, the restructuring cadre vacancies as contained in the Annexure
for the Chennai Customs Commissionerate is 220 for the post of Inspector
(PO) and 49 for the post of Inspector (Examiner).
https://www.mhc.tn.gov.in/judis
W.P.Nos.20743 & 20744 of 2010 &
37. In view of the same, there is no doubt that the promotion given
to the private respondents to the post of Inspector (Examiner) on 20.10.2003
was only from the restructured cadre vacancy, for which the petitioners
herein ought to have been considered for promotion along with the
candidates contained in the feeder category in Column 12(a) , with these
petitioners being senior to private respondents in view of the merger of
cadres by fixing the inter-se seniority under Rule 5.
38. It is brought to the notice that the private respondents who had
been given promotion to the post of Inspector (Examiner) on 20.10.2003 had
been regularised and further they had also been promoted to the post of
Customs Appraiser as early as in the year 2011 and they also got
superannuated from service. The petitioners, who are in service and are
entitled to have been promoted prior to their juniors / private respondents as
on 20.10.2003 to the post of Inspector (Examiner), were only promoted on
17.01.2006. Based on which they had been subsequently promoted to the
post of Customs Appraiser only on 30.09.2014, which they would have got
in the year 2011 itself when the private respondents were promoted as
Customs Appraiser.
https://www.mhc.tn.gov.in/judis
W.P.Nos.20743 & 20744 of 2010 &
39. When the private respondents had been originally given
promotion to the post of Inspector (Examiner) in the restructured cadre
vacancy without considering the petitioners for promotion as decided by the
Tribunal and confirmed by the Hon’ble Supreme Court, they ought to be
reverted and given the promotional benefits only on subsequent dates when
they get entitled. However, since the private respondents had been promoted
as Inspector during the pendency of these proceedings and had also been
subsequently promoted to Customs Appraiser and they had also retired from
service and further as per the decision of the Hon’ble Supreme Court in
D.Raghu's case, we are not inclined to disturb the benefits extended to the
private respondents.
40. Admittedly the petitioners were entitled to be considered for
promotion as on 20.10.2003 when their juniors i.e., the private respondents
were promoted to the post of Inspector (Examiner) and in view of the
decision of the Hon’ble Supreme Court in D.Raghu's case, the petitioners are
entitled for notional promotion with seniority.
41. In view of the above deliberations, impugned orders of the
Tribunal are set aside and the Writ Petitions are disposed of, by directing the
respondents to notionally promote the petitioners to the post of Inspector
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W.P.Nos.20743 & 20744 of 2010 &
(Examiner) w.e.f. 20.10.2003, entitling them to seniority, consequential
promotion and pensionary benefits. No costs. Consequently, connected
Miscellaneous Petitions are closed.
[A.S.M.J.,] [G.A.M.J.,]
19.02.2025
Speaking order
Index : Yes
Neutral Citation : Yes
sri
To
1.The Chief Commissioner of Customs,
Union of India,
Custom House, Chennai - 1.
2.The Commissioner of Customs,
Union of India,
Custom House, Chennai - 1.
3.The Commissioner of Customs (Imports),
Custom House,
New No.60, Rajaji Salai,
Chennai - 600 001.
4.The Joint Commissioner of Customs (P&V),
Custom House,
New No.60, Rajaji Salai,
Chennai - 1.
5.The Chairman,
Central Board of Excise and Customs,
https://www.mhc.tn.gov.in/judis
W.P.Nos.20743 & 20744 of 2010 &
Ministry of Finance,
Department of Revenue,
New Delhi - 1.
6.The Registrar,
Central Administrative Tribunal,
Chennai Bench, Chennai - 104.
Dr. ANITA SUMANTH, J.
AND
G.ARUL MURUGAN, J.
sri
Pre-Delivery Common Order made in
W.P.Nos.20743 & 20744 of 2010 &
https://www.mhc.tn.gov.in/judis
W.P.Nos.20743 & 20744 of 2010 &
19.02.2025
https://www.mhc.tn.gov.in/judis
