IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 24TH AUGUST 2011 / 2ND BHADRA 1933 OP (CAT).No. 2438 of 2011(Z) ---------------------------- OA.224/2009 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS/PETITIONERS : ------------------------------ 1. D.L.ANILKUMAR, AGED 46,S/O.J.DARMADAS, RADIO OPERATOR,PRESENTLY AS MINISTERIAL STAFF IN THE OFFICE OF THE COMMISSIONER OF CENTRAL EXCISE & CUSTOMS,ICE BHAVAN,PRESS CLUB ROAD,TRIVANDRUM R/AT.VAZHAYIL HOUSE,CHRIST NAGAR,KUDAPPANAKUNNU P.O, THIRUVANANTHAPURAM -43. 2. V.KUMARASWAMY,AGED 45,S/O.VELAPPAN RADIO OPERATOR,PRESENTLY UTILIZED AS MINISTERIAL STAFF IN THE OFFICE OF THE COMMISSIONER OF CENTRAL EXCISE & CUSTOMS,ICE BHAVAN,PRESS CLUB ROAD, THIRUVANANTHAPURAM RESIDING AT VADASSERI NORTH NAGARCOIL. 3. M.R.RAMESH,AGED 54,S/O.M.S.RAMAN, RADIO OPERATOR, PRESENTLY POSTED AS MINISTERIAL STAFF IN THE OFFICE OF THE COMMISSIONER,CENTRAL EXCISE & CUSTOMS, I.S PRESS ROAD,COCHIN -18, RESIDING AT AMRITHA BHAVAN,PEEZHAKKAPPILLY P.O, MUVATTUPUZHA,ERNAKULAM DISTRICT. BY ADV. SRI.T.C.GOVINDA SWAMY SMT.KALA T.GOPI O.P. (CAT) 2438/2011 :2: RESPONDENTS/RESPONDENTS: ----------------------------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY,DEPARTMENT OF REVENUE, MINISTRY OF FINANCE,NORTH BLOCK NEW DELHI 110 001. 2. THE SECRETARY,DEPARTMENT OF EXPENDITURE MINISTRY OF FINANCE, NORTH BLOCK NEW DELHI 110 001 3. THE CHAIRMAN, BOARD OF CENTRAL EXCISE & CUSTOMS, NORTH BLOCK NEW DELHI -1. 4. THE COMMISSIONER, DIRECTORATE OF LOGISTICS, 4TH FLOOR, A WING, LOK NAYAK BHAVAN KHAN MARKET, NEW DELHI. 110 003. 5. THE ADDITIONAL DIRECTOR (COMMUNICATIONS) SHOPPING CENTRE,7TH STREET, SHANTI NIKETHAN, MOTI BHAG,NEW DELHI 110 001. 6. THE COMMISSIONER, CUSTOMS PREVENTIVE COMMISSIONERATE, I.S PRESS ROAD, ERNAKULAM. COCHIN -18. 7. THE COMMISSIONER, CENTRAL EXCISE & CUSTOMS, CENTRAL REVENUE BUILDING PRESS CLUB ROAD, THIRUVANANTHAPURAM-1. 8. THE COMMISSIONER, CENTRAL EXCISE & CUSTOMS, CENTRAL REVENUE BUILDING, I.S PRESS ROAD, COCHIN -18. ADV. SRI.THOMAS MATHEW NELLIMOOTTIL, SC,CB EX FOR R3,6,7&8 THIS OP (CAT) HAVING BEEN FINALLY HEARD 9.8.2011, THE COURT ON 24/08/2011, DELIVERED THE FOLLOWING: O.P. (CAT) 2438/2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE ORDER DATED 14.6.2011 IN O.A. NO. 224/2009 OF THE HON'BLE CAT, ERNAKULAM BENCH. EXT.P2 TRUE COPY OF THE O.A. NO. 224/2009 DATED 14.4.2009. (EXT.P2 AMENDED O.A. WITH ANNEXURES) EXT.P3 TRUE COPY OF THE REPL STATEMENT DATED 20TH AUGUST, 2010 FILED BY THE RESPONDENTS. EXT.P4 TRUE COPY OF ANNUAL CONFIDENTIAL REPORT OF 1ST PETITIONER FOR THE PERIOD FROM 1.4.2009 TO 31.3.2010. EXT.P5 TRUE COPY OF THE ANNUAL CONFIDENTIAL REPORT OF 2ND PETITIOENR FOR THE PERIOD FROM 1.4.2009 TO 31.3.2010. EXT.P6 TRUE COPY OF THE ANNUAL CONFIDENTIAL REPORT OF 3RD PETITION3ER FOR THE PERIOD FROM 1.4.2008 TO 31.3.2009. EXT.P7 A TRUE COPY OF ORDER BEARING C. NO. II/39/50/2003 ESTT.IV DATED 3.8.2011, ISSUED BY THE ADDITIONAL COMMISSIOENR (P&v) COCHIN-18. // TRUE COPY // P.S. TO JUDGE. knc/- C.N. RAMACHANDRAN NAIR & P.S. GOPINATHAN, JJ. = = = = = = = = = = = = = = = = = O.P. (CAT) No. 2438 OF 2011 = = = = = = = = = = = = DATED THIS, THE 24TH DAY OF AUGUST, 2011. J U D G M E N T P.S. Gopinathan, J. Petition under Article 227 of the Constitution of India. Petitioners assail the order of the Central Administrative Tribunal, Ernakulam Bench, dated 14.6.2011 whereby their application O.A. 224 of 2009 was dismissed. The petitioners entered the service of the first respondent Union of India, as radio operators of the Telecommunication Wing of the Central Excise and Customs Department and at present they are working under respondents 7 and 8. It is alleged that on account of the advancement of communication technology and the availability of Fax, Internet, STD, mobile phones etc., the requirement of separate telecommunication wing, with the staff as existed earlier, virtually became unnecessary and as a result, employees, including petitioners, of the Telecommunication wing were deployed and utilized in the administration and ministerial cadres against the duties and responsibilities attached to the post of LD Clerk, Tax Assistant, Senior Tax Assistant, etc. after obtaining willingness from such employees. Petitioners O.P. (CAT) 2438/2011 2 were deployed to the ministerial cadre and were discharging duties as Senior Tax Assistants since 2003-04. Though the petitioners are working in the main stream, they were not permitted to participate in the examination for promotion to the post of Inspectors. Thereupon the first petitioner filed an application as O.A. 634 of 2005 before the Tribunal below seeking modification of the recruitment rules to enable consideration of Radio Operators to the post of Senior Tax assistants in the ministerial wing and for further promotion as Inspector of Central Excise, with a plea that the category of Radio Operators is a dying cadre and therefore, they do not have any prospects for further promotion in the parent cadre. The respondent contended that the Telecommunication Wing was established in 1974 and that the Wireless Communication covers the Customs Formation along the Indo Pak border, Indo Nepal border, Indo Bangladesh border and coast lines to watch anti smuggling activities, and to ensure national security. Due to liberalization of economy there was decline in the smuggling activities which resulted in utilization of professional communication officers and such staff who were assigned additional work not related to wireless communication, to other departments, as a temporary measure to optimize the manpower utilization. There was no intention to wind up the telecommunication wing. However, the Original Application O.P. (CAT) 2438/2011 3 was disposed of directing the respondents to expedite the policy decision on the issue of merger within a period of three months. But according to the petitioners, the respondents had been making attempts by Annexure A1 order to revert back the petitioners to the parental cadre though their such services are not at all warranted in the parental cadre and that the attempt of the respondents is ill-motivated. Assailing Annexure A1 order with a prayer to set aside the same and seeking an order directing the respondents to proceed with the merger of the applicants to the post of Inspectors, O.A. 224/2009 was filed. 2. The respondents contended that the Telecommunication Wing has 938 sanctioned posts in different grades. 472 posts were lying vacant and subsequently, those posts were abolished in view of the reduced requirement. The Department required to retain 454 posts of Telecommunication staff in different grades to meet the essential Wireless communication requirement for anti Smuggling activities/operations of customs formations in remote border areas along coastlines of the country, including requirements of wireless communications between boats and shore stations; and the retention of the reduced staff strength of 454 is an absolute necessity. Upholding the contention raised by the respondents, the Tribunal below dismissed the petition on a finding that the reinforcement of O.P. (CAT) 2438/2011 4 Telecommunication Wing is a policy decision of the Government and there is no good reason to interfere with. Now this petition. 3. We have heard Advocate Sri. T.C. Govindaswamy, learned counsel appearing for the petitioner and advocate Sri. Thomas Mathew Nellimoottil, learned Standing Counsel appearing for the respondents. Perused the order of the Tribunal as well as the records. 4. The strong argument that was advanced by the respondents is that the Department has taken a policy decision to strengthen the Telecommunication stream and that the Department had replaced all the old boats and inducted a fleet of 109 marine vessels of the latest state of art of Technology at a cost of Rs. 358 crores. 57 vessels have already been brought into use at sensitive customs formations along the coastal lines. 28 marine staff has been recruited and recruitment of 349 marine staff is in process. The petitioners service is absolutely required in the parent department and are not liable to be deployed to any other section. It is further submitted that as per the recruitment rules, Radio Operators and Inspectors are of different category and their duties are entirely different. The essential qualifications for Radio Operators are :- (a) +2 with Science subject or equivalent, (b) Diploma and Radio Technology/ Electronics/ Communication or equivalent or ITI certificate in Electronics/ Radio O.P. (CAT) 2438/2011 5 Communication with two years experience. Whereas essential qualifications prescribed for the post of Inspector is graduation in any discipline. While the Radio Operators draw salary in pay Band -1 (5200- 20200) with Grade Pay of Rs. 2800/-, Inspectors draw salary in the Pay Band-2 (9300-34800) with Grade Pay of Rs. 4200/-. Majority of the radio operators and other communication staff were recruited from pensioner/discharged Ex-service men as they only fulfill the eligibility conditions for recruitment as per the recruitment rules. 4. Having heard either side, we find little reason to rule out the possibility for the respondents to revive and strengthen the Telecommunication wing. Having petitioners got appointed as Radio Operators in the separate stream with separate pay band in tune with the minimum qualification and the Inspectors were recruited with different pay band and qualification, we are enable to accept the argument of the petitioners that they are entitled to be re-deployed as Tax Assistants to entitle them to get promotion as Inspectors. It is for the Department concerned to decide as to how the staff is to be deployed. In the event there happened to be some surplus staff in a particular department, due to pattern changes, it is up to the respondents to deploy them in places where their service is required and to repatriate them to the parent department as and O.P. (CAT) 2438/2011 6 when the occasion warranted. We find that the action of the Department is in no way vitiated by any illegality, arbitrariness or impropriety. The Tribunal below had correctly accepted the defence set up by the respondents that the Department has been proposing to strengthen the Telecommunication system for which service of the petitioners are required in the parent department and that they are not liable to be deployed to any other department. The Tribunal below had no way erred so as to be rectified in exercise of powers under Article 227 of the Constitution of India. We find no merit in this Original Petition. Accordingly, it is dismissed. No costs. C.N. RAMACHANDRAN NAIR, (JUDGE). P.S. GOPINATHAN, (JUDGE) knc/-