Friday, November 2, 2012

XX OA No 266, 267 & 300 /2009 on ??? 2011 here incomplete


ORIGINAL APPLICATION No.266, 267  & 300/2009

TODAY, THIS THE           DAY OF ................. , 2011


1. M. Shivanna,
   S/o K. Marappa,
   aged about 55 years,
   designated as LDC
   O/o Assistant Commissioner of Central Excise,
   Davangere Division, Davanagere.
   (Applicant in OA No.266/09)

2.S,R, Bojappa,
   S/o Late Ramappa,
   Aged about 57 years,
   Designated as Havaldar, O/o E-1 Division,
   Bangalore-II Commissionerate Central Excise,
   (Applicant in OA No.267/2009)

3.Smt. K.M. Vasanthy,
   W/o B.K. Pawaiah,
   Aged about 56 years,
   Working as Deputy Office
   Superintendent Level-II,
   O/o Assistant Commissioner of Service Tax
   & EOU Division, New Shivaji Rao Road,
   (Applicant in OA No.300/2009)               ...                                 Applicants

(By Advocate Shri Izzhar Ahmed)


1.The Union of India,
   Through the Secretary,
   Ministry of Finance,
   Department of Revenue,
   North Block, New Delhi.

2.The Commissioner of Central Excise
   Bangalore-I Commissionerate,
   Central Revenue Building,
   Queens Road, Bangalore-560 001.                  ...                     Respondents

(By Advocate S/Shri S. Prakash Shetty, ACGSC on OA No.266 & 267/2009 and  and M. Rajakumar, ACGSC in OA No.300/2009)


Hon'ble Smt. Leena Mehendale, Member (A) :

            These three O.As arising from the office of the Commissioner of Central Excise, Bangalore, pertain to promotion of Group 'D' employees to the cadre of LDC under the Central Excise & Customs Department Group 'C' posts Recruitment Rules. 

2.         In short, the dispute has arisen because Group 'D' employees can be promoted as Group 'C' only when
(a)  they come to possess the required educational qualification and
(b)  they fall within the quota of 10% of promotion from Group ''D' to    `       Group 'C', 
(c)           when there are vacancies available and

(d)   For this 10% quota, there is a departmental examination, passing of which is compulsory.   This departmental examination consists of written examination and tping test and the two are mostly held with a time gap and are also cleared by the incumbents in different times.  This leads to a certain confusion as regards the promotion to the post of LDC as well as the seniority in the cadre of LDC.

            The details of the applicants are compared in the following table.
     O.A. No.      Name of          Date of passing    Date of passing    Promoted to
                     Applicant         of Departmental    of typing test        as L.D.C.
                                          Examination                                           w.e.f.

266/2009   Shivanna                18.9.1987                31.1.1998            22.11.2002

267/2009    Bajappa                  22.3.1991                28.8.1997    Not yet promoted

300/2009    Vasanthy                 10.1.1983               11.5.1992               19.3.1986

            Admittedly, the service conditions of the applicants are governed by the Central Excise and Customs Departmental Lower Division Clerk Recruitment Rules, 2002 (for short 2002 (Rules) (Annexure-A/3).  These Rules were issued in supersession of the 'Central Excise and Land Customs Department Group-C Posts Recruitment Rules, 1979 (for short 1979 Rules) (Annexure-A/1) as amended by Central Excise and Land Customs Department Group 'C' Posts Recruitment (Amendment) Rules, 1981 (for short Amendment Rules, 1991) (Annexure-A/3).

3.            As all the 3 applicants have passed their departmental examinations under the 10% quota before 19.10.1991, they are governed by the 1979 Rules and it is beneficial to quote the same.  We take the advantage of quoting them from an earlier OA No.284/2003 which was filed by the 1st applicant herein, in which the said Rules were extracted by the Respondents in their reply statement as under:-
"....  The Recruitment Rules for the post of LDC was notified vide GSR 742 dated 02.06.1979.  As per the said Recruitment Rules, 10% of vacancies in the grade of LDC to be filled by Direct Recruitment is to be reserved for being filled up by Group 'D' Employees subject to the following conditions viz.,

(a)  Selection would be made through a Departmental Examination confined to such Group 'D' Employees, who fulfil the recruitment of minimum educatioal qualification viz., Matriculation or Equivalent.

(b)  The maximum age for this examination would be 45 years (50 years for SC/ST candidates)

(c)           Atleast five years of service in Group 'D' would be essential.

(d)           The maximum number of recruits by this method would be limited to 10% of the vacancies in the cadre of LDC occurring in a year: unfilled vacancies would not be carried over".

5.         In the same reply statement, it is further mentioned as under:

"The Central Board of Excise and Customs vide Communication dated 09.12.1982 issued instructions bifurcating the 10% quota in two parts i.e., 5% to be filed up on the basis of seniority subject to rejection of unfit candidates and the balance 5% on the basis of a qualifying examination with typing test to be held departmentally.  Howeer, this Hon'ble tribunal while disposing of OA Nos1645 &1690/88 vide order dated 14.02.1989 held that it was not open to the Board to modify the overall quota earmarked to Group 'D' Staff by way of executive instructions which were contrary to the Recruitment Rules before the Rules were amended and Gazetted."

6.         It is seen thereafter that the Recruitment Rules for LDCs were amended vide GSR 589 dated 19.10.1991.  We again quote from the reply statement as under:-
"The Recruitment Rules of LDCs were amended with retrospective effect from 09.12.1982 vide GSR 589 dated 19.10.1991.  The Hon'ble Tribunal while disposing of OA Nos.5/93, 20/93, 23/93 and 98/93 vide order dated 29.03.93 quashed GSR 589 dated 19.10.1991 in so far as it sought to give retrospective effect.  Consequently, the appointments made the grade of LDC from 1982 onwards against the 10% quota reserved for Group 'D' Staff was undertaken by regulating the appointments from 1982 to 1991 as per the original Recruitment Rules vide GSR 742 dated 02.06.1979.  As per the said Recruitment Rules, the entire 10% was filled on the basis of departmental examination confined to Group 'D' staff.  ....  The list of candidates qualified in the examination should be arranged in the order of merit for being filled against the vacancies reserved for them and the officers appointed from the earlier examination should be placed above those appointed from the subsequent examination".

7.         The above statements make it absolutely clear that those who have passed the examination before 19.10.1991 have to be appointed strictly in terms of GSR 742, dated 02.06.1979.

8.            Referring further to OA No.284/2003, the applicant was agitating his claim for promotion as LDC in comparison to the two different sets of employees.  The first set consisted of S. Haroon Basha, S. Ranganath, M.G.Madar and Thippanna (as quoted from the amended OA) who had taken the Departmental Examination along with  the applicant (M. Shivanna) on 18.9.1987.  It is clarified in the reply statement that any Group 'D' employee, who has taken the examination first and has qualified need not take the examination for the second time.  The 4 persons named herein above, had taken their examination in 1983, but, were not promoted for want of vacancies under the 10% quota.  Not being knowledgable about the Rule position, they once again took the examination in 1987.  Therefore, in all fairness, the department had to give them promotion against their eligibility arising out of  the 1983 examination and hence, they were promoted vide office order No.69/95 dated 25.7.1995 and the applicant has no claim to be promoted along with them.

9.         The second set with whom the applicant sought to compare himself consisted of P.S. Prakash, B.K. Kali, N.R. Mugudum and H. Marenna, about whom, it is submitted in the reply statement that they had passed the departmental examination on 30.1.1991 or 21.03.1991 as the case may be and were promoted vide order dated 03.08.1999.  But, the applicant was not promoted with effect from 1987 as he cleared his typing test only in 1998.

10.       This stand appears to be flowing from  the 1991 Recruitment Rules which make it amply clear that the departmental examination will mean a combination of written examination and typing test.  This Rule still does not take care of the fact that generally the written and typing tests are not held together, but, with a sizable gap.  However, from a comparative chart produced as Annexure-A/4 in OA No.284/2003, for explaining the promotion to the 4 Respondents therein, the department has applied the following principle as seen from the comparative chart at Annexure-A/4, whenever the date of typing test is within 12 months from the date of written examination, the date of eligibility is same as the date of written examination.  However, if the date of passing the typing test is after 12 months of passing the written examination, then the date of eligibility has been reckoned from the date of passing the typing test.    They have sought to apply the same principle in the case of the present applicant whose date of eligibility is reckoned as the date of passing the typing test which is 31.08.1998 and hence he has not been considered along with the other four.  We appreciate such a clarity applied by the respondents, but, with the observation that it can be applied only to the examination held after 19.10.1991.  As mentioned at para 5 (supra) this Tribunal judgment in OA No.1645 & 1690 of 1988 make this amply clear.  Since the applicant has passed the written examination in 1987, the eligibility must be reckoned from that date under the Recruitment Rules of 1979.
11.       We also see that when that case (OA No.284/2003) came up for hearing, none represented the applicant.  On his part, the counsel for Respondents simply submitted a memo placing on record a communication dated 27.7.2004  which gave commitment as under:
".........  after recording the memo filed by the respondents along with the communication dated 27.7.2004 wherein it was stated that "entire issue of promotions ordered from Group-D (educationally qualified) to the Ministerial Grade from 1982 onwards has to be reviewed.  As this exercise is time consuming and the instant case will also be covered in the said review, the case of M. Shivanna will be taken up afresh along with others and decided on merits."

12.       Thus, the matter was left to the good administrative sense of the Respondents and the OA was disposed of without going into the merits but only directing the respondents to take decison within four months.

13.       Thereafter, the Respondents did undertake the exercise to review all promotions of educationally qualified Group 'D' employees from the year 1982 onwards as per their promise.  They called for the representations of all the educationally qualified Group 'D' employees and issued Establishment Order No.15/2007, dated 01.03.2007 which is the impugned order.  Although the 1st applicant (Shivanna) has made his representation, the impugned order does not clarify whether this particular representation has been considered or not. Be that as it may, we simply find that the Respondents have not been able to thoroughly appreciate the position arising out of the 3 different R.Rs, namely,  1979, 1991 and 2002 Rules and have failed to  appreciate that the cases which are eligible before 19.10.1991 must be dealt with as per 1979 Rules when the typing test was not mandatory.  This aspect that typing test cannot be introduced as mandatory without properly amending the Rules, was reiterated by the earlier judgments of this Tribunal dating back to 1988 as quoted above.  It is obvious that the department has not taken the benefit of being guided by those judgments.  Therefore, we have no hesitation to allow the OA and direct the ddepartment to grant the benefit of LDC promotion to the applicant Shivanna with effect from 18.9.1987 which is the date of his passing the examination.

14.       We clarify that he will only be given the notional benefit of such promotion, but his seniority will be fixed according to this date and if he is eligible for further promotion as a consequence of this notional promotion w.e.f. 18.9.1987, then he shall be given such a notional promotion and pay scale as the case may be at par with juniors.  Thus, the notional benefit of this judgment shall be given to the applicant with effect from 18.9.1987, but the actual benefit will flow from the date of this judgment.  The respondents will issue necessary orders including his cadre, grade and pay scale, etc. within two months from the date of receipt of a copy of this order.

15.       So far as OA No.267 and 300 of 2009 is concerned, we again find that the Respondents have not specifically stated whether their representations were considered or not.  They both have also cleared the departmental examinations.  Bajappa on 22.3.1991 and Smt. Vasanthi on 10.1.1983.  Their cases will also be governed by 1979 Rules above and orders in respect of them will also be issued with the same principle as in para 14 within two months.

15.         As seen from OA No.300/2009, since the impugned order may have had the effect of postponing the date of promotion of Smt. K.M. Vasanthy, which was earlier as 19.3.1986, by the effect of the impugned order H.R. Rangaswamy and VK. Abdulla who had passed the examination after the applicant and who are also junior to her were given higher promotion.  She has attached a chart at para 16 of the OA giving the vacancy position as well as the posts filled between 1982 and 2000.  Her case will therefore, have to be considered in depth clearly mentioning her eligibility vis-a-vis the eligibility of Rangaswamy and Abdulla as referred to in the OA.

16.       With the above directions,  OA Nos 266/2009, 267/2009 and 300/209  are allowed.  No order as to costs.

               (V. AJAY KUMAR)                         (LEENA MEHENDALE)
                   MEMBER (J)                                                MEMBER (A)



            As for OA No.266/2009, we also have to refer to the earlier OA filed by the applicant  namely, OA No.284/2003 and decided by this Tribunal on 30.8.2004.  It states:
".....  after recording the memo filed by the respondents along with the communication dated 27.7.2004 wherein it was stated that "entire issue of promotions ordered from Group-D (educationally qualified) to the Ministerial Grade from 1982 onwards has to be reviewed.  As this exercise is time consuming and the instant case will aso be covered in the said review, the case of M. Shivanna will be taken up afresh along with others and decided on merits",...... "

            It is seen from the record that further to the communicatikon dated 27.07.2004, the respondents have taken up the exercise of review of the promotions of educationally qualified Group-D from the grade of LDC from the year 1982 onwards.  Vide the circular in C.No.II/3/19/2005 Estt. dated 18.7.205  while stating that"this office is in recept of a number of representations from educationally qualified Group-D Officers/Ministerial Officers who are promoted from Group-D cadre claiming anomaly in the position with certain other officers who were also elevated to such position from Group-D cadres", called for representations from the educationally qualified Group-D employees who are still continuing in the cadre, in the prescribed proforma to enable the respondents to review the particulars of all educationally qualified Group-D Officers, whether promoted to higher cadres or not from the year 1982 onwards.  The applicants in all the three O.As have submitted their representations by enclosing the necessary particulars in the prescribed proforma to the respondents.  The 1st Respondent vide Establishment Order No.15/2007 dated 1.3.2007 passed orders after considering the representations made by the applicants and others, reviewiong all promotions/ appointments from Group-D cadres to the grade of Lower Division Clersk against the vacancies for the eyars 1989-99 as against the original commitment of review from the period from 1982-2000.  The 2nd Respondent at para No.8 of the said order dated 1.3.2007, discussed various points raised by the officers in their representations and at paras 9 and 10 finally stated that:-
            "9.       Thus, in the light of the above, after going through the facts for the period from 1982 onwards, a review of the appointments to the grade of LDC from 1989 onwards was found necessary.

            10.       Accordingly, a Review Selection Committee Meeting was held on 6.2.2007 to review the appointments made from the Grade-D cadres to the grade of Lower Division Clerk, against the vacancies of the years 1989 to 1999 and also to select the candidates for the vacancies of the year 2000."

The said order does not indicate whether the cases of the applicants in the above three O.As were considered or not since their names were not mentioned anywhere in the said order.

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