Saturday, November 3, 2012

OA No. 434 OF 2010 on ????-2011


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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