CENTRAL
ADMINISTRATIVE TRIBUNAL
BANGALORE
BENCH : BANGALORE
ORIGINAL
APPLICATION No.266, 267 & 300/2009
TODAY,
THIS THE DAY OF
................. , 2011
HON'BLE
SMT. LEENA MEHENDALE ...MEMBER(A)
HON'BLE
SHRI V.AJAY KUMAR ...MEMBER(J)
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,
Bangalore.
(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,
Mysore.
(Applicant in OA No.300/2009) ... Applicants
(By Advocate Shri Izzhar Ahmed)
Vs.
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)
O R D E R
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)
psp.
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.
No comments:
Post a Comment