Dhole Govind Sahebrao & Ors vs Union Of India & Ors

1. The present controversy is yet another seniority dispute amongst employees of the Customs and Central Excise Department. The controversy herein has emerged on account of a reconstitution of cadres. In the first instance, a separate cadre was constituted, out of the existing ministerial cadre, for discharging electronic data processing responsibilities. This was necessitated by the decision of the department to introduce computerization, in its functioning. The instant computerization project, which commenced in 1991-92, seems to have been fully implemented in or around 2002-03. Consequent upon achievement of the above objective, the separate cadre so created, was sought to be re-amalgamated with the existing ministerial cadre. The above noticed bifurcation and re- amalgamation, resulted in a co-incidental career advancement, for those who had accepted to break away from the original ministerial cadre. Some of those who were originally placed at inferior positions in the seniority list of the original ministerial cadre, acquired superiority over their counterparts (in the original ministerial cadre), consequent upon their promotion within the cadre of data entry operators, which resulted in their acquiring a higher position in seniority, over and above those who were senior to them in the original ministerial cadre. Before embarking upon the niceties of the seniority dispute, it is imperative to delve upon the reasons of the afore-stated bifurcation, and re-amalgamation of cadres. The instant aspect of the matter is accordingly being dealt with, in the following paragraphs.

2. The ministerial cadre as it originally existed, comprised of posts of Deputy Office Superintendents (Levels 1 and 2), Upper Division Clerks, Lower Division Clerks, Stenographers (Senior Grade and Ordinary Grade), Draftsmen etc. Conditions of service of members of the original ministerial cadre, were regulated by the Central Excise and Land Customs Department Group 'C' Posts Recruitment Rules, 1979 (hereinafter referred to as, the 1979 Rules). Members of the original ministerial cadre regulated by the provisions of the 1979 Rules were eligible for promotion to the post of Inspector (Ordinary Scale) - an executive cadre post. And thereupon, even further promotion, in the executive cadre.

5. Rule 7 of the 1992 Rules authorized, the Central Government to relax any other provision of the rules with respect to any class or category of persons. On 2.2.1993, in exercise of the powers conferred on the Central Government, the Central Excise Department permitted its erstwhile employees, to apply for posts of Data Entry Operator Grade 'A', subject to the condition, that they had completed 3 years' regular service and satisfied the conditions of eligibility stipulated in the 1992 Rules. On 9.9.1993, the Customs Department, issued a circular informing the employees who had exercised their option for appointment to the post of Data Entry Operator Grade 'A', that their option was final and could not be revoked. A number of employees holding ministerial cadre posts in the Customs and Central Excise Department, accordingly came to be appointed as Data Entry Operators Grade 'A'.

6. Under the mandate of the 1992 Rules, the post of Data Entry Operator Grade 'A' was assigned the pay scale of Rs.1150-25-1500. It was the lowest post under the 1992 Rules. The Schedule appended to the 1992 Rules provided, that to be eligible for appointment to the post of Data Entry Operator Grade 'A', an individual should have qualified the 12th standard or equivalent examination. Additionally, he/she should possess a speed of not less than 8000 key depressions per hour, for data entry work. The onward promotion from the post of Data Entry Operator Grade 'A' was to the post of Data Entry Operator Grade 'B'. The said promotional post was in the pay scale of Rs.1350-30-1440-40-1800-EB-50-2200. To be eligible for promotion to the post of Data Entry Operator Grade 'B', the schedule stipulated 6 years' regular service as Data Entry Operator Grade 'A'. The post of Data Entry Operator Grade 'B' was liable to be filled exclusively by promotion, failing which, on transfer by deputation. Onward promotion from the post of Data Entry Operator Grade 'B', was to the post of Data Entry Operator Grade 'C'. The said promotional post, was in the pay scale of Rs.1400-40-1800-EB-50-2300. Data Entry Operators Grade 'B' with 3 years' regular service in the grade, were considered eligible for promotion to the post of Data Entry Operator Grade 'C'. The schedule appended to the 1992 Rules provided, that the post of Data Entry Operator Grade 'C' would be filled up exclusively by promotion, failing which, on transfer by deputation. The highest post under the 1992 Rules, was the post of Data Entry Operator Grade 'D'. The said post was to be filled up by promotion from amongst Data Entry Operators Grade 'C', with 4 years' regular service in the grade. The post of Data Entry Operator Grade 'D', was earmarked the pay scale of Rs.1600-50-2300-EB-60-2660. Just as in other cases referred to hereinabove, promotion to the post of Data Entry Operator Grade 'D' was to be made exclusively by promotion, failing which, on transfer by deputation.

A perusal of Rule 4 of the TA Rules, 2003 reveals, that persons holding the posts of Upper Division Clerk and Data Entry Operator Grade 'A' would be re- designated as Tax Assistants. The service rendered by them as Upper Division Clerk and Data Entry Operator Grade 'A' respectively, would be taken into consideration as regular service rendered on the post of Tax Assistant (for purposes of promotion etc.). In addition to the above, Lower Division Clerks falling within the seniority list, as determined by the appointing authority at the commencement of the TA Rules, 2003, on passing the departmental computer proficiency examination, would be deemed to be promoted as Tax Assistants (from the date of passing such examination). Rule 4 of the TA Rules, 2003 expressly postulates, that Upper Division Clerks and Data Entry Operators Grade 'A', would be placed en-block senior to others appointed as Tax Assistants, and further, that their inter-se seniority would be determined from the date of their regular appointment to the respective grade. For their inter-se placement, Rule 4 of the TA Rules, 2003 further postulated, that Lower Division Clerks would be placed below the Upper Division Clerks and Data Entry Operators Grade 'A'. A perusal of Rule 4 of the TA Rules, 2003 reveals an amalgamation of three posts, namely, Upper Division Clerk, Data Entry Operator Grade 'A' and Lower Division Clerk. All these posts were amalgamated into a freshly created cadre of Tax Assistants under the TA Rules, 2003.

10. While deliberating on the TA Rules, 2003, it is also imperative to notice, that Rule 5 of the TA Rules, 2003 provided for the methods of recruitment, age limits and other qualifications, for appointment to the post of Tax Assistant. The details of the aforesaid particulars are found in the schedule appended to the TA Rules, 2003. A perusal of the above schedule reveals, that 90% of the appointments made to the post of Tax Assistant were to be by direct recruitment, and 10% by way of promotion. For promotion, the following conditions of eligibility were stipulated in column 12 of the schedule appended to the TA Rules, 2003:-

(iii) The Data Entry Operator Grade 'B' (4500-7000) and Tax Assistants (4500-7000) have been placed in their higher scale of 5000-8000 and they shall be placed below the Assistant and Data Entry Operator Grade 'C' and their inter-se placement shall be fixed in accordance with the date of regular appointment to the respective grade subject to the condition that their inter-se placement in respective category shall not be disturbed.

13. It is in the background of the aforesaid factual and legal position, that we would venture to adjudicate upon the controversy raised in these connected civil appeals.

15. The orders passed by the Administrative Tribunal referred to in the foregoing paragraph were assailed through Writ Petition Nos. 8361, 8388, 17208, 17257, 21692 to 21694, 29468, 34708, 38622 of 2004 and Writ Petition Nos. 2723, 3302 and 8606 of 2005. They were also assailed through Writ Petition MP Nos. 9866, 20444, 20497, 26220, 26221, 35789, 35791, 41879, 46155 of 2004; 12236 and 9286 of 2005; 17258 and 17508 of 2006; and WPMP No. 864 of 2004. The instant challenge was raised at the hands of the Union of India, as also, the members of the cadre of Data Entry Operators, who were merged into the cadre of Tax Assistants and Senior Tax Assistants, consequent upon the promulgation of the TA Rules, 2003 and STA Rules, 2003. All the above mentioned writ petitions were disposed of by the High Court of Judicature at Madras (hereinafter referred to as, the High Court) by a common judgment and order dated 13.4.2007. While adjudicating upon the aforesaid controversy, the High Court, in paragraph 24 of the impugned judgment and order dated 13.4.2007, framed the questions arising for determination. Paragraph 24 is being extracted hereunder:-

212. So far as the rules dealing with Irrigation Branch are concerned, the said rules namely the Punjab Service of Engineers (Irrigation Branch) Class I Service Rules, 1964 have not been considered earlier by this Court at any point of time. One Shri M.L. Gupta was appointed to the post of Assistant Executive Engineer as a direct recruit on 27-8-1971, pursuant to the result of a competitive examination held by the Haryana Public Service Commission in December 1970. The said Shri Gupta was promoted to the post of Executive Engineer on 17-9-1976. He made a representation to the State Government to fix up his seniority in accordance with the service rules but as the said representation was not disposed of for more than three years he approached the High Court of Punjab and Haryana by filing CWP No. 4335 of 1984. That petition was disposed of by the High Court on the undertaking given by the State that the seniority will be fixed up soon. The said undertaking not having been complied with, the said Shri Gupta approached the High Court in January 1986 by filing a contempt petition. In September 1986 the State Government fixed the inter se seniority of the said Shri Gupta and other members of the Service and Gupta was shown at Serial No. 72. Two promotees had been shown at Serial Nos. 74 and 75. Those two promotees filed a writ petition challenging the fixation of inter se seniority between the direct recruits and promotees and the High Court of Punjab and Haryana by its judgment passed in May 1987 quashed the order dated 29-9-1986 whereunder the seniority of the direct recruits and promotees has been fixed and called upon the State Government to pass a speaking order assigning position in the gradation list. The State Government issued a fresh notification on 24-7-1987 giving detailed reasons reaffirming the earlier seniority which had been notified on 29-9-1986. Prior to the aforesaid notification of the State Government Shri Gupta had filed a writ petition in the Punjab and Haryana High Court which had been registered as CWP No. [pic]6012 of 1986 claiming his seniority at No. 22 instead of 72 which had been given to him under the notification dated 29-9-1986. The promotees also filed a writ petition challenging the government order dated 24-7-1987 which was registered as CWP No. 5780 of 1987. Both the writ petitions, one filed by the direct recruit, Shri Gupta, (CWP No. 6012 of 1986) and the other filed by the promotees (CWP No. 5780 of 1987) were disposed of by the learned Single Judge by judgments dated 24-1-1992 and 4-3-1992, respectively, whereunder the learned Single Judge accepted the stand of the promotees and Shri Gupta was placed below one Shri O.P. Gagneja. The said Shri Gupta filed two appeals to the Division Bench against the judgment of the learned Single Judge, which was registered as Letters Patent Appeals Nos. 367 and 411 of 1992. The aforesaid letters patent appeals were allowed by judgment dated 27-8-1992. This judgment of the Division Bench of the Punjab and Haryana High Court was challenged by the State of Haryana in the Supreme Court which has been registered as CAs Nos. 1448-49 of 1993. This Court granted leave and stayed the operation of the judgment in the matter of fixation of seniority. The promotees also challenged the said judgment of the Division Bench in this Court which has been registered as CAs Nos. 1452-1453 of 1993. During the pendency of these appeals in this Court, an Ordinance was promulgated on 13-5-1985 as Ordinance No. 6 of 1995 and the said Ordinance was replaced by the impugned Act 20 of 1995 by the Haryana Legislature. The validity of the Act was challenged by the said Shri Gupta and pursuant to the order of this Court the said writ petition having been transferred to this Court has been registered as TC No. 40 of 1996. So far as the validity of the Act is concerned, the question of any usurpation of judicial power by the legislature does not arise in relation to the Irrigation Branch inasmuch as the Recruitment Rules of 1964 framed by the Governor of Punjab in exercise of power under proviso to Article 309 of the Constitution which has been adapted by the State of Haryana on and from the date Haryana was made a separate State had not been considered by this Court nor has any direction been issued by this Court. The legislative competence of the State Legislature to enact the Act had also not been assailed and in our view rightly since the State Legislature has the powers under Entry 41 of List II of the Seventh Schedule to frame law governing the conditions of service of the employees of the State Government. That apart Article 309 itself stipulates that the appropriate legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State subject to the provisions of the Constitution. Proviso to Article 309 confers power on the President in connection with the affairs of the Union and on the Governor in connection with the affairs of the State to make rules regulating the recruitment and the conditions of service until provision in that behalf is made by or under an Act of the appropriate legislature under Article 309 main part. In this view of the matter, the legislative competence of the State Legislature to enact the legislation in question is beyond doubt. The only question which, therefore, arises for consideration and which is contended in [pic]assailing the validity of the Act is that under the Act the direct recruits would lose several positions in the gradation list and thereby their accrued and vested rights would get jeopardised and their future chances of promotion also would be seriously hampered and such violation tantamounts to violation of rights under Part III of the Constitution. For the reasons already given while dealing with the aforesaid contention in connection with the Public Health Branch and the Buildings and Roads Branch the contention raised in the transfer case cannot be sustained and, therefore, the transfer case would stand dismissed. The Act in question dealing with the service conditions of the engineers belonging to the Irrigation Branch must be held to be a valid piece of legislation passed by the competent legislature and by giving it retrospective effect no constitutional provision has been violated nor has any right of the employee under Part III of the Constitution been infringed requiring interference by this Court."

36. For all the reasons recorded hereinabove, we are satisfied, that the different orders passed by the Administrative Tribunal, and the common order dated 13.4.2007 passed by the High Court, are liable to be set aside. The same are accordingly hereby set aside. The appeals filed by those who moved to the cadre of Data Entry Operators from the ministerial cadre, and were thereupon amalgamated in the cadre of Tax Assistants/Senior Tax Assistants, are allowed. The connected appeals preferred by the Union of India, are also allowed. In the above view of the matter, the authorities shall give effect to Rules 4 and 5 of the TA Rules, 2003 and the STA Rules, 2003, respectively, without any further delay.

March 26, 2015.

[HEARD BY HON'BLE JAGDISH SINGH KHEHAR AND HON'BLE S.A.BOBDE,JJ.] Date : 26/03/2015 These appeals were called on for judgment today.

For Appellant(s) Mr. K.Maruthi Rao, Adv.

Ms. K. Radha, Adv.

for Mrs. Anjani Aiyagari,AOR(NP) Mr. B. V. Balaram Das, AOR Mr. B. Krishna Prasad,AOR For Respondent(s)Mr. Jayanth Muthraj, Adv.

for Mr. C. K. Sasi,Adv.

Mr. Fakhruddin, Sr. Adv.

Mr. Vijay Kumar,AOR Mr. B. Krishna Prasad,AOR Mr. P. Narasimhan,AOR Mr. S. R. Setia,AOR Mr. Vikas Mehta, AOR Mr. Raghavendra S. Srivatsa, AOR Mr. Rauf Rahim, AOR Hon'ble Mr. Justice Jagdish Singh Khehar pronounced the judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice S.A. Bobde.

For the reasons recorded in the Reportable judgment, which is placed on the file, the appeals are allowed.

The authorities shall give effect to Rules 4 and 5 of the TA Rules, 2003 and the STA Rules, 2003, respectively, without any further delay.