CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH :
BANGALORE
ORIGINAL APPLICATION No. 434 OF 2010
TODAY, THIS THE .........DAY OF
............, 2011
HON'BLE SHRI N.D. RAGHAVAN ... VICE-CHAIRMAN
HON'BLE SMT. LEENA MEHENDALE ... MEMBER
(A)
Shri
M.N. Narasimha Murthy,
S/o N.
Narasiyappa,
aged
38 years,
working
as Senior Tax Assistant,
O/o
the Additional Director General,
Directorate
of Revenue Intelligence,
Zonal
Unit, No.503, Raja Rajeshwari Krupa,
III A
Main Road, OMBR Layout,
Banasawadi,
Bangalore – 560 043.
R/at
No.11, 'H' Block, Central Excise & Customs
Staff
Quarters, B.T.M. Layout,
Bangalore
– 50 068. ... Applicant
(In person)
Vs.
1.
Union of India, Rep. by the Secretary,
Ministry of Finance, Department of Revenue,
New Delhi – 110 001.
2. The
Chairman,
Central Board of Excise & Customs,
North Block, New Delhi – 110 001.
3. The
Director General,
Directorate of Revenue Intelligence, Hqrs.,
7th
Floor, 'D' Block, I.P. Bhavan, I.P. Estate,
New Delhi – 110 002.
4. The
Additional Director General,
Directorate of Revenue Intelligence,
Zonal Unit, No.503, Raja Rajeshwari Krupa,
III A Main Road, OMBR Layout,
Banasawadi, Bangalore – 560 043.
5. Shri J.P. Raju, Tax Assistant,
Directorate of Revenue Intelligence,
Hqrs.,
7th Floor, 'D' Block, I.P.
Bhavan, I.P. Estate,
New Delhi – 110 002.
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6.
Shri Mahesh Chand, Senior Tax Assistant,
Directorate of Revenue Intelligence, Hqrs.,
7th Floor, 'D' Block, I.P.
Bhavan, I.P. Estate,
New Delhi – 110 002.
7.
Smt. Suma Appukuttan, Steno Grade-II,
Directorate of Revenue Intelligence, Mumbai
Zonal Unit,
3rd, 4th & 5th
Floor, 13, Sir Vithaldas Thackersey Marg,
Opp. Patkar Hall, New Marine Lines, Mumbai
– 400 02.
8.
Shri Rajeev Sadana, Steno Grade-II,
Directorate of Revenue Intelligence, Hqrs.,
7th Floor, 'D' Block, I.P.
Bhavan, I.P. Estate,
New Delhi – 110 002.
9.
Shri Ajay Bhasin, Tax Assistant,
Directorate of Revenue Intelligence, Hqrs.,
7th Floor, 'D' Block, I.P.
Bhavan, I.P. Estate,
New Delhi – 110 002.
10.Shri
Rohit Issar, Steno Grade-II,
Directorate General of Central Excise
Intelligence,
Hqrs., West Block VIII, Wing No.VI, IInd
Floor,
R.K. Puram, New Delhi – 110 066.
11.Shri
Vinod Kumar, Steno Grade-II
Directorate of Revenue Intelligence, Hqrs.,
7th Floor, 'D' Block, I.P.
Bhavan, I.P. Estate,
New Delhi – 110 002.
12.Shri
Kuldeep Singh, Senior Tax Assistant,
Directorate of Revenue Intelligence, Hqrs.,
7th Floor, 'D' Block, I.P.
Bhavan, I.P. Estate,
New Delhi – 110 002.
13.
Shri Vinay Verma, Senior Tax Assistant,
Directorate of Revenue Intelligence,
Hqrs.,
7th Floor, 'D' Block, I.P.
Bhavan, I.P. Estate,
New Delhi – 110 002.
14.Shri
Rajesh M. Nair, Tax Assistant,
Directorate of Revenue Intelligence,
Mumbai Zonal Unit,
3rd, 4th & 5th
Floor, 13, Sir Vithaldas Thackersey Marg,
Opp. Patkar Hall, New Marine Lines, Mumbai
– 400 02.
15.Shri
Sudeb Sarkar, Tax Assistant,
Directorate of Revenue Intelligence,
Kolkata Zonal Unit,
8, Ho Chin Minh Sarani (2nd
Floor), Suite No.16 & 17,
Kolkata – 700 071.
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16.Shri
Vijay Kumar, Steno Grade-II,
Directorate of Revenue Intelligence,
Chennai Zonal Unit,
No.25, Gopalakrishna (Iyer) Road, T.
Nagar,
Chennai – 600 017.
17.Shri
Sameer Navale, Tax Assistant,
Directorate General of Central Excise
Intelligence,
Ahmedabad Zonal Unit, 1st Floor,
Preema Chambers,
Near Mithakhali Six Roads, Navrangpura,
Ahmedabad – 380 006.
18.Shri
Sushant S. Sabat, Tax Assistant,
Directorate of Revenue Intelligence,
Ahmedabad Zonal Unit,
Rupen Bunglow, Behind Jain Merchant
Society,
Near Mahalaxmi Cross Roads, Paldi,
Ahmedabad – 380 007. ... Respondents
(By Advocate Shri M.V. Rao, Sr.Central
Govt. standing Counsel for R-1 to 4)
O R D E R
Hon'ble
Smt. Leena Mehendale, Member (A) :
This
OA is filed on 18-10-2010 under Section 19 of the Administrative Tribunals Act,
1985. The 14 private respondents No. 5
to 18 have chosen not to file any objection despite notices having being issued
to them.
2. This
is a matter agitated for promotion under the category of Scheduled Tribe (ST)
reservation.
3. The
impugned orders are:
(a) (Annexure-A/9),
which is Memorandum No.DRI.F.No.A-34011/1/ 2007-Estt., dated 29-07-2009 issued by the Directorate of Revenue
Intelligence, New Delhi, informing that a viva-voce test was held in the
Directorate on 14-07-2009 for appointment to the post of Intelligence Officer
(Group 'B' Non-Gazetted) in the pay band of Rs.9300-34800/-) + Grade Pay of
Rs.4200/- in DRI/DGCEI. The candidates
who have been selected on the basis of the
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service records, performance in the
said test and/recommendation of the Committee in the order of merit is attached
mentioning 13 names in which the name of the applicant does not appear and
(b)
Annexure-A/16 which is Order
No.50/2009, in file No.DRI.F.No.A-34011/1/2007-Estt., also dated 29-07-2009,
regarding appointment to the grade of departmental Intelligence Officer (Group
'B' Non Gazetted) in the pay band-II of Rs.9300-34800/- + Grade Pay of
Rs.4200/- in DRI/DGCEI, mentioning 10 names which are appearing at Sl. No.1 to
10 in the earlier memorandum declaring the results of viva-voce. The said 13 persons in the 1st
list are impleaded as Respondents No.5 to 17.
The private Respondent No.18 is yet another person who was subsequently
appointed as Intelligence Officer while denying the applicant.
4. The
time gap between 29-7-2009 and 18-10-2010 is explained by an earlier OA.
5. The
brief facts of the case are that the applicant joined as LDC in the Ministry of
Finance, in the year 1994, and belongs to the Scheduled Tribe category. On 27-06-2003, he was promoted to the post of
Tax Assistant (Group 'C' post) and thereafter, on 18-09-2006, he was promoted
as Senior Tax Assistant. He claims to
have an unblemished service record and also that Senior Tax Assistants are
eligible for promotion to the post of Intelligence Officer
6. A
prior history of the matter is pertinently noted. The applicant had ealier filed OA No.58/2008,
for getting the promotion as Senior Tax Assistant with retrospective effect
from 2003 and further promotion as Intelligence
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Officer on par with another
officer. There was also a prayer for
directing the department to frame proper Recruitment Rules for the post of
Intelligence Officer and higher cadres so as to provide equal opportunity of
promotion as envisaged in Article 14,15, and 16 of the Constitution of
India. This OA was allowed to be
withdrawn and the Tribunal directed the respondent department to frame the
necessary Recruitment Rules, etc. within a period of 4 months. The order came to be passed on
01-12-2008. Thereafter, the applicant
filed another OA No.298/2009, and shortly thereafter, the impugned orders had
been passed.
7. Hence,
the Tribunal once again on 01-10-2010 allowed the applicant to withdraw OA
298/2009 giving liberty to file a fresh comprehensive OA challenging the
impugned order dated 29-7-2009. The
Tribunal observed the following in the said order:
"...... there was a proposal to frame appropriate
Recruitment Rules for the post of Intelligence Officer. As on date the Recruitment Rules notified on
11.8.90 stand, as no fresh Recruitment Rules have been notified. As per the said Rules selection to the post
of Intelligence Officer is by transfer/deputation. It is not known how the respondents conducted
the promotional examination (qualifying examination) and further conducted
viva-voce for promotion to the post of Intelligence Officer."
(The
last sentence refers to 1990 rules).
It is seen that the draft new rules
propose to 10% posts to be filled by promotion, but the claim of respondent is
that they are yet to take effect. We
observe that this is so despite the direction of the Tribunal in OA No.58/2008
to notify new rules within 4 months.
8.
In
his lengthy OA, the applicant has tried to point out several procedural lapses
such as not holding DPC in time, not framing the Recruitment Rules in time, not
observing seniority and roster points, not following the circulars from
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DoP&T, dated 6.1.2006, etc. But, his main ground is only one, namely,
that the post of Intelligence Officer is a promotion over the post of Senior
Tax Assistant, as such, the policy of reservation for Scheduled Caste/Scheduled
Tribes must be followed and since the list of 10 promoted candidates in the
impugned order at Annexure-A/16 does not include any Scheduled Tribe candidate,
the same must be set aside and he must be accommodated as promoted candidate in
the ST category.
9. In
their brief reply filed by the respondents, as well as from the arguments of
the learned counsel, the whole emphasis is on the point that the post of
Revenue Intelligence Officer is not a post for promotion and hence, the
question of giving any ST reservation does not arise. The sub-para to Para 1 of the reply statement
which is pertinent, is quoted here:
"The
reliefs sought by the applicant are highly
misconceived and he is under the wrong impression that the post in
question is filled by promotion. It is
submitted that the question of reserviation is not applicable in the instant
case since the post of Intelligence Officer was filled by 'transfer or by
deputation'. The applicant's request for
production of certain records is also totally unnecessary since the official
respondents have not applied for the policy of reservation. The OA is totally devoid of any merits and
liable to be dismissed."
The learned counsel for respondents
has also drawn our attention to Annexure-R/1, which quotes G.I. from the DoP
& A.R. vide O.M. No.36012/7/ 77-Estt.(SCT), dated 21-1-1978 on the subject
of reservation in appointments to the posts filled by deputation or
transfer. The said G.I., categorically
allows the departments and Ministries not to adhere to any reservation whenever
it is proposed to fill up a post through deputation or transfer. During the course of arguments also, the
learned counsel has emphasized again and again that the post in question is not
a promotion and hence the OA is not maintainable.
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10. Hence,
the real relevant question to be decided by us now is whether the said post of
Revenue Intelligence Officer is a promotional post or not, when compared with
the post of STA.
11. Towards
this question, the applicant, who is appearing in person has pointed out the
following documents/facts/arguments.
a) Annexure-A/6,
a letter dated 06-07-2009, written by the Directorate of Revenue Intelligence,
to other offices of the respondent department, which itself uses the word
"promotion". It reads:
"Subject: Departmental promotional examination held on
5th, 6th and 8th
May, 2009 for the post of Intelligence
Officer in the Directorate of Revenue Intelligence and
Directorate General of Central Excise/Intelligence.
====
The
result of the Departmental promotional examination held on 5th, 6th,
and 8th May, 2009 for the post of Intelligence fficer in the
Directorate of Revenue Intelligence and Directorate General of Central Excise
Intelligence has been declared vide this Directorate's Memorandum of even
number dated 03-07-2009 (copy enclosed)."
b) As
seen from Annexure-M/3, the order No.DGCEI f.No.A-428/22/13/ 2008-Acctts, dated
23-02-2010, which refers to OM No.F.No.1/1/2008-IC, dated 13.11.2009, of the
Ministry of Finance, Govt. of India, New Delhi, the pay-scale and Grade pay of
Intelligence Officers has been upgraded to the pre-revised pay scale of
Rs.7450-11500/- and Grade pay of Rs.4,500/- with effect from 1.1.2006. Thus, the distinction between the pay scales
of STA which is pre-revised scale of Rs.5,000-8000/- and the pay scale of
Intelligence Officer in the pre-revised scale was Rs.6500-10500/- which seems
to have been merged together temporarily after the VI Pay Commission has again
been bruoght back vide the said OM dated 13.11.2009.
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c) The
pay scale for Senior Technical Assistant (after VI Pay Commission) is
Rs.9300-34800/- with the Grade Pay of Rs.4,200/- It was argued by the learned
counsel for the respondents that this is same as that of Intelligence Officer
as seen from impugned order which isdated 29-07-2009 (Annexure-A/9). However, in view of (b) supra, the position
has changed with effect from 13.11.2009.
The Grade pay of Intelligence Officer is definitely higher to that of
STA even after VI Pay Commission as was so before the VI Pay Commission
also. Thus, it is in spirit, if not in
letter, a promotion, entitling for higher financial benefits.
d) The
applicant was allowed to appear for the viva-voce and the list declared vide
Memorandum No.DRI F.No.A-34011/1/2007-Estt, dated 03-07-2009, Annexure-A/6 contains his
name at Sl. No.49 with the remark "QUALIFIED".
e) Although,
the learned counsel for respondents has relied on the paragraph appearing
immediately after the end of the list in Annexure-A/6 which reads as under:
"The
candidates who have been declared 'QUALIFIED' have qualified the departmental
examination for appointment on transfer to the post of Intelligence Officer,
are hereby informed that ........"
the applicant points out the
contradiction between the heading of the list where the respondents have used
the word promotion but in the end paragraph, they have not used the word
"promotion".
f) In
another related judgment in OA No.25/1997 (as produced by the applicant along with
memo), filed before the Principal Bench of CAT, there were five applicants in
the cadre of Stenographer Gr.II or Assistant, who were
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agitating that they also must be
considered for promotion to the post of Intelligence Officer. Their rank is junior to that of the present
applicant. While deciding the OA in
their favour, the Principal Bench has used the following wording:
"......... In view of the aforesaid examination for
promotion to the post of Intelligence Officers, their results shall be declared
and if the applicants are qualified, they shall be entitled to consequential
benefits in accordance with the rules."
Thus, the Principal Bench of the
Tribunal has categorically used the word "promotion" for the post of
Intelligence Officer, from the post of STA and other grades.
g) In
OA No.298/2009, which was also filed by the present applicant before this
Tribunal and which was allowed to be withdrawn, the Tribunal has questioned the
justiceability of interpreting the earlier Recruitment Rules notified on
11-08-1990 and have questioned their interpretation as transfer/ deputation
while at the same time, conducting the qualifying examination for
promotion. (Refer para 9 supra).
h) Finally,
we come to the Recruitment Rules as they stand as on 11-08-1990 which have not yet been
modified, although, draft new Recruitment Rules may have been under
preparation. The said earlier Rules are
quoted by the applicant at Annexure/A-4 and the learned counsel for respondents
is relying on the same and he states that the post of Intelligence Officer will
be filled up by "transfer/deputation". It is important to note that the terms
deputation and transfer are used only when the incumbent is taken from any
other department on deputation or by a lateral transfer within the same
department from one grade to another grade where both carry the same
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Grade pay. It is clear from the wording used by the
department while describing the examination as well as from OA No.25/1997
agitated before the Principal Bench that candidates well below the post of
Intelligence Officer and carrying much lower Grade pay have been allowed to be
considered for filling up the vacancies of Intelligence Officers. Thus, in spirit if not in letter of the
Recruitment Rules of 11-08-1990, the post of Intelligence Officer is being
filled by promotion. Had it been a
lateral transfer between STA and Intelligence Officer, the lower grade
officials would not be eligible for promotion.
11.
In
view of the above, we have no doubt that the post of Intelligence Officer has
been getting filled by promotion and the
cadres of either STA or Stenographer Gr.II or Assistant are only to be treated
as feeder cadres. We agree that the
department is also at liberty to fill up the post through the channel of
deputation or transfer as and when they are taking employees from other
departments. However, the present issue
confines only with respect to the two impugned lists through which the post of
Intelligence Officers are sought to be filled from out of STA, Stenographer
Gr.II, etc., and those two lists undoubtedly fall in the category of promotion
and cannot be treated as either transfer or deputation.
12. In
view of this, the department is duty bound to observe the reservation policy as
per the law. We therefore consider it
necessary, just and fair to direct the respondent department to recast the
final merit list for the ten vacancies as was sought to be filled by
Annexure-A/16, accommodate the candidates eligible on the basis of reservation
and in particular, accommodate the applicant as per his roster point as
applicable to the promotional post. On
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the basis of such list, the
respondents will issue necessary orders of promotion to the applicant with
necessary retrospective effect having regard to the date on which the other
candidates in the list at Annexure-A/16 have started officiating. Within two months from the date of receipt of
a copy of this order such modified list shall be published along with the
necessary posting order to the applicant.
The consequential benefits will be paid to the applicant within two
months thereafter. No order as to costs.
(LEENA
MEHENDALE) (N.D.
RAGHAVAN)
MEMBER (A) VICE-CHAIRMAN
psp.
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