IN THE HON'BLE HtGH COURT OF CHHATTISGARH AT BILASPUR (CG) WRITPETmON(S)No._/^^/2009 ^^g^ PETITIONER -^^^ S) RESPONDENTS ReCEWBK^W Ms.Shan^aSmgi^ 't^hGoiKi.fit^-al^wn B.C. DHAR S/o Late Shrinath Dhar Aged about 52 years, Employed as Sr. Tax-Assistant, Central Excise, Division-II, Bhilai, Residing at: Qr. No. 1/B, HSCL Qrs. Street26, Sector-5, Bhilai District: Durg (CG) VERSUS 1> Unionoflndia Through: The Secretary, Ministry ofFinance, Department ofRevenue, North Block, NEW DELHI. 2. The Additional Commissioner (P&V) Customs and Central Excise, Central Exeise Building, Tikra Para, RAIPUR(CG) 3. The Superintendent (VIG) Customs and Central Excise, Central Excise Building, Tikra PaTa, RAIPUR(CG) 4. The Registrar, Central Administrative Tribunal, Caravs Building, Civil Lines, JABALPUR (MP) WRIT PETITION UNDER ARTICLE 226 / 227 OF THE CONSTITUTION OFINDIA 1. PARTICULARS OF THE PETmONER:- Same as givea in the Cause Title. 2. PARTICULARS OF THE RESPONDENTS :- Same as given in the Cause Title. '^^ HIGH COURT OF CHHATTISGARHAT BILASPUR D.B.: Hon'ble Shri Satish K. AHnihotri and Hon'ble Shri Radhe Shvam Sharma, JJ. Writ Petition (S.l No.1507 of 2009 Petitioner Respondents versus B.C.Dhar Union of India and others Present: Shri B.P.Rao, counsel forthe petitioner. Shri BhishmaKinger, counsel for respondents No.1 to 3. Writ Petition under Article 226/227 of the Constitution of India ORAL ORDER (Passed on27thAugust,2011) Per Radhe Shyam Sharma, J.: By this petition, the petitioner seeks setting aside of the respondents' letter dated 13-11-2006 (Annexure P-5), order of the Central Administrative Tribunal, Jabalpur passed in Original Application No.88/2007 on 30-4-2008 (Annexure P-9) and order of the Tribunal passed in ReviewApplicationNo.29/2008 on 26-6-2008 (Annexure P-11). The petitioner further seeks a direction to respondents No.1 to 3 to consider his case for promotion to the post of Inspector at par with others. A2, The facts, as projected by the petitioner, for proper adjudication of the dispute, in nutshell, are that the petitioner was working as U.D.C. in the Central Excise in the year 1993 and was promoted as Tax-Assistant in the year 1997. For his further promotion to the post of Inspector, he appeared in all papers of depattmental examination, which he passed in the year 2003. The •'^ }-:W ai iiia :'<Ss "'!i^. ,;"r"~» ''<s* § •^/ b-.. 'y.^' 3!-WI?i' petitioner has been denied opportunity to appear for Physical Endurance Test held on 23-11-2005 and in the subsequent D.P.C. for his promotion to the post of Inspector, his representation was not disposed of properly. Thus, he submitted another representation on 29-11-2006 and for early disposal of the representation, he filed an application before the Central Administrative Tribunal, Jabalpur. The Tribunal, instead of passing a direction for early disposal of the representation ofthe petitioner, issued notice to the respondents for ^ their reply. The respondents tooka plea that the petitioner was not eligible due to his crossing the prescribed age limit for prbmotion and quoted circular dated 17-2-1999, but the said circular was not made available to the petitioner. The petitioner filed a review application before the Central Administrative Tribunal, Jabalpur, which was also turned down by the Tribunal. 3. Respondents No.1 to 3 have submitted reply to thepetition stating therein that the petitioner did not qualify in the departmental examination for promotion to the post of Inspector before 7-12-2002 and he passed the departmental examination for said promotion only on 23-12-2003. As per records, date of birth of the petitioner is 15- 4-1956, therefore, he had crossed the age limit of 45 years on the crucial date of 1-1-2002. In view of the above, the petitioner was not Aa. considered to be eligible for .promotion to the post of Inspector. In response to the petitioner's letterdated 21-6-2006, respondent No.3 had intimated him vide his letter dated 13-11-2006 regarding observation of the Cadre Controlling Authority, i.e., Commissioner, Central Excise, Indore to whom the matter was referred to for 'Si tl^ .^- |-tTWe-;;'Y- necessary action, as to how the petitioner could not be considered for promotion to the post of Inspector. Since, neither respondent No.2 nor respondent No.3 is the Cadre Controlling Authority for the posts of Inspector, no action can be taken at their end except forwarding the representation of the petitioner to the Cadre Controlling Authority. Action inthe matter, if any, can be taken by the Commissioner, Central Excise, Indore only, who is not a party respondent here. The petitioner himself has admitted in his petition that the last paper of Departmental Promotion Examination was cleared by him on 23-12-2003. The Review DPC was held from 3-7- 2006 to 6-7-2006 and the vacancies considered for the year 2002- 03. As per the existing instructions, the crucial date of eligible candidates to be considered was the 1-1-2002. Since the petitioner passed the departmental examination in the year 2003, and as per the Government of India, Ministry of Finance, Department of Revenue, New Delhi's Circular issued vide F.No.A.12014/1/98- Ad.lllA dated 17-2-1999, he had crossed the prescribed age limit of 45years on the crucial date, i.e., 1-1-2002. The date of birth ofthe petitioner is 15-4-1956 and, therefore, he, being ineligible, was not called for the Physical Endurance Test held on 23-11-2005. The petitioner's representation was also suitably decided by the Cadre ,Controlling Authority with the findings which was then duly communicated to the petitioner by the Superintendent (Vig) C.Ex., Raipur vide his letter dated 13-11-2006. 4. Shri B.P.Rao, learned counsel for the petitioner argued that despite passing of the departmental examination in the year 2003, Rll •——lTSF=n!~Bs^u^;,..-j_t,^ l?rtl-:3S-S-SE-Si 'St: li i •I 1 [:;!!1 BFI::IJI ffii .;\.'•^ the petitioner has not been promoted to the post of Inspector. Copy ofthe circular dated 17-2-1999 (Annexure R-1), by which upper age limit of 45 years has been fixed for consideration of promotion to the post of Inspector, was not made available to the petitioner. The Tribunal dismissed the original application moved by the petitioner overlooking his submissions. Dismissal of the review application made by the petitioner against the order passed in the original application was also ma/a fide. 5. Shri Bhishma Kinger, learned counsel for respondents No.1 to 3, referring to letter dated 22-6-2006 (Annexure P-3), argued that DPC (Departmental Promotion Committee) for the promotion of ministerial officers to the grade of Inspector of Central Excise held in the first week of July, 2006 was a DPC meant for only those candidates who were eligible for the promotion prior to 7-12-2002, i.e., the date on which new Recruitment Rules for the Inspector of Central Excisewere implemented and since the petitioner cleared the departmental examination for promotion to the Inspector grade only on 23-12-2003, his name was not included in the select panelof consideration list of eligible candidates by the Cadre Control Authority. Learned counsel also referred to circular dated 17-2-1999 issued by the Government of India, Ministry of Finance, Department of Revenue, New Delhi (Annexure R-1) and submitted that by the circular, the Government of India has issued instructions that the candidates can be considered for promotion to the Group 'C' Executive post of Inspector of Central Excise and Narcotics upto the maximum age limit of 38 years which will be relaxable to 40 years in "s' •-".*-—.n^is'ssasSessaseaswsssSs'ss -iiju^&a.isS t^'' yi^u*!uA fc^s*4Mi B[Iij 11—i riimufl' D 1111 -<^ 1>"1" the case of candidates belonging to the S.C. and S.T. communities. However, those of the officials who were not considered for such promotion upto the age of 38/40 years will be granted the benefit of relaxation in age limit upto 45 years as per executive instructions F.No.A.32022/10/74-Ad.lllA dated 6-10-1975 in order to enable a fair opportunity of a minimum of two chances. However, the officials who were considered for promotion upto the age limit of 38/40 years on two or more occasions and were not found 'FIT' for promotion on two occasions will not be eligible for this relaxation in age limit. Those of the officials who were either considered only once or were not found 'FIT' on one occasion will be eligible for being considered only once within the relaxed age limit of 38/40 to 45 years. It has been further clarified that the officials once promoted to Inspector's grade and subsequently happen to be reverted to a lower post for whatever reasons will be required to be within the prescribed maximum age limit of 45 years. 6. We have heard learned counsel for the parties and perused the record with utmost circumspection. The petitioner has submitted that he became qualified for consideration of promotion to the post of Inspector in the year 2003 and he does not dispute his crossing of the age limit of 45 years prescribed under circular dated 17-2-1999 (Annexure R-1). The relevant instructions issued by the Government of India vide circular dated 17-2-1999, mentioned above, apparently bar candidature of the petitioner for consideration of promotion to the post of Inspector due to his crossing the age limit of 45 years. Therefore, the finding arrived at by the Tribunal regarding ineligibility Gopal ofthe petitioner, for the reason stated above, is legal and does not warrant any interference by this Court. 7. Consequently, the writ petition is dismissed. No order as to costs. _ v Sd/- SatishK.Agnihotri Judge .J Sdk'- . R.S.Sharma Judge "'l'"^31"' iy.iii:r ''^s'^'sssss'sssssa^K "'» ^^^&^^: ^-^ SiS ! ^S ^ "^ ^ :-ia ^KS^ ~wysws'-: