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S.LAKSHMI versus SECY TO GOVT

High Court of Madras

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S.Lakshmi v. Secy to Govt - WP.Nos.8361 of 2004 [2007] RD-TN 1459 (13 April 2007)

IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 13.4.2007

CORAM:

THE HONOURABLE MR.JUSTICE DHARMA RAO ELIPE

AND

THE HONOURABLE MR.JUSTICE S.K.KRISHNAN

W.P.Nos.8361, 8388, 17208, 17257, 21692 to 21694, 29468, 34708, 38622 of 2004 and W.P.Nos.2723, 3302 and 8606 of 2005 AND

W.P.M.P.Nos.9866, 20444, 20497, 26220, 26221, 35789, 35791, 41879, 46155 of 2004, 12236 & 9286 of 2005, 17258 and 17508 of 2006 and WVMP.864 of 2004 W.P.No.8361 of 2004:

1. Tmt.S.Lakshmi

Senior Tax Assistant

Customs House

Chennai 600 001

2. S.Ramprasad

Data Entry Operator Grade A

Customs House

Chennai ... Petitioners Vs.

The Secretary to Government

Ministry of Finance & Company Affairs

(Department of Revenue)

representing Union of India

New Delhi and others ... Respondents * * *

W.P.8361 of 2004 is a petition under Art.226 of the Constitution of India, praying for a Writ of Certiorarified Mandamus, calling for the records of the third respondent relating to his order passed in O.A. No.558, 538 and 909 of 2003 dated 30-12-2003 and quash the same and direct the respondent to grant promotion/redesignation pursuant to the new Recruitment Rule 5(ii) of Central Excise & Customs Department Senior Tax Assistants (Group C Post) Recruitment Rules, 2003 published vide Notification dated 16-1-2003 and Rule 4(4) of the Central Excise & Customs Department Tax Assistants (Group C Post) Recruitment Rules, 2003 published vide Notification dated 2-5-2003 in respect of stipulation regarding inter se seniority among ministerial cadre of UDCs and Technical Cadre of DEOs. * * *

For Petitioners

in W.P.8361/2004 : Mr.A.L.Somayaji, S.C. for M/s.V.Perumal

For petitioners in

W.Ps.8388, : Mr.Vijayanarayanan, S.C. for 17208, 17257 & M/s.R.Parthiban 34708/2004,

3302/2005& for

respondents in

WPMP.12236/2005 :

For petitioners in

W.Ps.21692 to

21694/2004,

For R.1 & R.2 in

W.P.8361/2004,

W.P.8388/2004 &

WPMP.36830/2004 : Mr.T.Chandrasekan, SCGSC

For petitioners in

W.Ps.29467 &

29468, 38622/2004

& 8606/2005 : Mr.Patty B.Jagannathan

For R.21 to R.53

in W.P.8361/2004 &

for R.23 to R.34 in

W.P.8388/2004,

for R.5 & R.10 in

W.P.34708/2004,

for petitioners in

WPMP.12236/2005,

for R.3, R.4 & R.11

in W.P.17208/2004

and for R.3 & R.5

to R.12 in WP.

17257/2004 : M/s.P.V.S.Giridhar Associates For R.5, R.6, R.8 to

R.11, R.14 & R.16

to R.21 in WP.8388/04 : M/s.Kamatchi Sundaresan For respondents in

W.P.29467/2004 : M/s.R.Neethi Perumal For R.2 & R.3 in

W.P.34708/2004 &

for R.2 to R.5 in

W.P.2723/2005 &

for R.1 & R.2 in

W.P.17257/2004 : Mr.V.T.Gopalan, Addl.Solicitor General assisted by Mr.S.Udayakumar, SCGSC For R.2 in

W.P.38622/2004 &

W.P.8606/2005 : Mr.N.R.Chandran, S.C. for Mr.Akbar Rao For impleaded parties C.K.Chandrasekaran for in W.P.8388/2004 : M/s.Row & Reddy For impleaded

parties in W.P.

29468/2004 : Mr.R.Muthukumarsamy, S.C. for M/s.S.Silambanan * * *

COMMON ORDER



DHARMA RAO ELIPE, J.

The employees of two cadres of the Customs Department, strike swords against each other through this litigation, claiming seniority against each other for further promotion.

2. On a perusal of the entire materials placed on record, this Court is able to find that in the Central Excise and Custom Departments, initially there were two cadres, viz. Ministerial Cadre and Executive Cadre. The ministerial cadre consisted of Lower Division Clerks (LDCs), Upper Division Clerks (UDCs) and Tax Assistants. An LDC could claim promotion to the post of UDC/UDC Special Pay and from UDC/UDC Special Pay to the post of Tax Assistant. The next avenue of promotion to the eligible UDCs/UDC Special Pay and the Tax Assistants was "Inspector", a selection post in the Executive Cadre.

3. The contesting parties to these writ petitions were originally appointed as Lower Division Clerks (LDCs) in the Customs Department in the year 1991.

4. In the year 1992, a new cadre called "Data Entry Operators" (DEOs) was created in the Department. The recruitment, scale of pay, promotion, etc. thereof were governed by the Electronic Data Processing Discipline (Group E Technical Posts) (EDP Rules). The sanctioned strength of the DEOs was 114. The cadre was divided into four grades, viz. Grade A, Grade B, Grade C and Grade D, with enhanced scales of pay. The EDP Rules provided for promotion from Grade A to Grade B, Grade B to Grade C and Grade C to Grade D. The creation of the new cadre, which was basically a computer-oriented, became necessary when the first phase of computerisation was introduced in the Customs Department in the year 1987.

5. When options were called for from the LDCs to be appointed as DEO Grade A, 62 LDCs exercised their option to be appointed as DEO Grade A and the rest of 52 vacancies were filled by inter-collectorate transfers. The writ petitioners were one amongst those LDCs who opted to be inducted as DEO Grade A.

6. In 2000, the entire Department was computerized with the introduction of Electronic Data Interchange (EDI) and all the staff of the Department irrespective of the post/cadre were exposed to the computer training and computer operation.

7. In the year 2002, the Ministry brought about a major restructuring of the cadres in the Customs and Central Excise Departments and all the posts in the ministerial cadre (UDCs Special Pay, UDCs, Tax Assistants, LDCs) and the DEO Grades in the technical cadre were integrated and two new cadres were created, viz. (i) Senior Tax Assistants (Rs.5000-8000) and (ii) Tax Assistants (Rs.4000-6000).

8. The erstwhile Ministerial posts such as Assistants, Tax Assistants, Upper Division Clerks Special Pay (UDCs Spl.Pay) and the technical posts such as DEO Grade B and DEO Grade C were merged together and redesignated as Senior Tax Assistants. Similarly, the posts of UDC, DEO Grade A and LDC were integrated and redesignated as Tax Assistant.

9. New Recruitment Rules were issued, viz. Central Excise and Customs Department Senior Tax Assistant (Group C Post) Recruitment Rules, 2003 (hereinafter referred to as "STA RR 2003") and Central Excise and Customs Department Tax Assistant (Group C Post) Recruitment Rules, 2003 (hereinafter referred to as "TA RR 2003"). Under STA RR, 2003, the seniority in the redesignated post, viz. Senior Tax Assistant was fixed in the following order: I. Senior Tax Assistant (Rs.5000-8000):

1.Assistants (Rs.5000-8000)

2.DEOs Grade C (Rs.5000-8000)

3.DEOs Grade B (Rs.4500-7000)

4.Tax Assistants (Rs.4500-7000)

5.UDCs Special Pay

10. The inter-se placement of the Assistants and DEOs Grade 'C' was fixed as per the date from which they had actually been appointed to these grades on regular basis without altering their inter se placement in the respective category. Similarly, the inter se placement of DEOs Grade B and Tax Assistants was fixed as per the date of their regular appointment to the respective grade without altering their inter se placement in respective category. UDCs with Special Pay were directed to be placed below Assistants, DEOs Grade C and Grade D and Tax Assistants. Also provided that they should pass the required departmental tests in computer training within two years.

11. Under TA RR, 2003, the seniority for the redesignated post, viz. Tax Assistant was fixed as under: II. Tax Assistant (Rs.4000-6000):

1.UDCs

2.DEOs Grade A

3.LDCs

The inter se seniority among these candidates has been fixed in accordance with the date of appointment in the respective post. Thus, the restructure of the cadre resulted in the merger/integration of LDCs, UDCs and Tax Assistants of the ministerial cadre and the DEOs of the technical cadre.

12. As stated already, the employees who were working in the pre-restructured ministerial cadres of UDC, UDC Special Pay, Steno Grade II, Steno Grade III, Women Searcher and Tax Assistant were eligible for promotion to the post of Inspector (Preventive Officer). A group of UDCs of the Department, who are working as Preventive Officers on ad hoc basis, challenged Rule 5(ii) of the STA RR, 2003 and Rule 4(4) of the TA RR, 2003 prescribing the inter se seniority among the erstwhile ministerial cadre staff and technical cadre staff inasmuch as in the restructured cadre they were ranked junior to those employees who were promoted as DEO Grade C and DEO Grade B. The erstwhile UDCs claim that the inter se seniority among the erstwhile ministerial cadre and the technical cadre in the restructured cadres should be fixed on the basis of the date of joining the Department as LDCs.

13. The Tribunal, relying on the Supreme Court judgment in STATE OF MAHARASHTRA v. CHANDRAKANT ANANT KULKARANI (1981 4 SCC 130), held that the seniority principle stipulated in the impugned notification is unfair to the ministerial cadre of the Department and considering any other date than the date of initial entry into the service as LDC is discriminatory and arbitrary and, accordingly, quashed Rule 5(ii) of STA RR, 2003 and Rule 4(4) of TA RR, 2003. The Tribunal directed the department to apply fair, just and rational principle in determining the seniority while integrating the different cadres and to evolve an acceptable solution. The department was further directed to have a consultation process with the employees representative/association concerned and recast the seniority rule.

14. Aggrieved by the order passed by the Tribunal, the DEOs and even the Union of India have filed these writ petitions wherein the LDCs/UDCs/Tax Assistants have filed impleadment petitions to implead them as party respondents and the same having been ordered, they were brought on record as party respondents. During the pendecy of these writ petitions, some of the Senior Tax Assistants/UDCs were promoted as Inspector subject to the result of these writ petitions and hence such promoted candidates have also filed impleadment petitions to implead them as party respondents and the said petitions having also been allowed, they were also brought on record as party respondents. Thus, this common order is passed in the presence of all the parties concerned.

15. For the sake of convenience, Data Entry Operators either they have filed writ petitions or they got impleaded themselves as party respondents on their promotion, are referred to as petitioners, LDCs/UDCs/Tax Assistants, who were either originally impleaded as party respondents or who came on record by virtue of impleadment petitions are referred to as respondents and official respondents (who have also filed W.P.Nos.21692 to 21694 of 2004) are referred to as official respondents.

16. Learned senior counsel for the petitioners argued that the restructuring of the cadres by merging/integrating the posts in a Government Department is the prerogative of the Government and essentially it is a policy decision of the Government. The scope of judicial review of such policy decision is narrow and limited, it being to find out whether all relevant factors were taken into consideration while effecting the merger/integration of the posts. Such policy decision cannot be interfered with under Art.226 of the Constitution unless and otherwise the new recruitment rules are demonstrated to be arbitrary/unreasonable. Learned senior counsel submitted that in the present case, the Department had taken into consideration all the relevant factors and prescribed the norms for fixing the inter se seniority among the ministerial cadre and the technical cadre. The minimum qualification prescribed for the technical cadre is higher than the minimum qualification prescribed for the ministerial cadre and consequently, the higher scale of pay was prescribed for the technical cadre vis-a-vis the ministerial cadre. All relevant factors such as the educational qualifications, nature and responsibilities of duty, powers exercised, pay scale of the posts, etc. were taken into consideration by the Department while prescribing the norms for determining the inter se seniority in restructured cadre. Even assuming that the inter se seniority has been determined purely on the basis of the scale of pay, the same cannot be interfered with inasmuch as the scales of pay were fixed by the Pay Commission on the basis of the nature of the duties and the responsibilities.

17. Learned senior counsel further argued that chances of promotion is not a Fundamental Right and therefore the provisions relating to the inter se seniority in new recruitment rules cannot be quashed on the ground that promotional chances of certain employees were either shrunk or completely lost. Since the new recruitment rules provide for the fixing of inter se placement between ministerial cadre and the technical cadre as per date of regular appointments in the respective grades subject to the condition that inter-se placement in the respective category, the rules governing the inter se seniority are not arbitrary and discriminatory. Lastly, the learned senior counsel submitted that the new recruitment rules were given effect to in other Commissionerates of Customs, but in so far as the Customs Commissionerate in Chennai is concerned, the rules could not be implemented in view of the order passed by the Tribunal.

18. It was argued by the learned Standing Counsel appearing for the Customs Department that the cadre restructuring plan has come into existence with the approval of the Cabinet and is a policy decision of the Government. The restructuring plan was aimed at bringing about optimum productivity, induction of Information Technology and creating an officer-oriented assessee-friendly tax regime keeping in pace with the changing time. The restructuring of the cadres and utilisation of the man power is prerogative of the Government. The Government has got the right to amalgamate the departments or bifurcate into more and constitute different categories of posts and there is no vested right in the employees to claim that rules governing their service conditions should be static for ever.

19. It was further argued that the inter-se placement of the employees belonging to the ministerial cadre and technical cadre was done with reference to the scales of pay, which were fixed by the Government according to the duties and the responsibilities attached to the posts. Further, the representations given by various employees' associations were duly considered before finalising the recruitment rules. The promotional prospects of the ministerial cadre employees have become much better after cadre restructuring. While merging/integrating the posts, every care has been taken to ensure that junior employees are not getting more monetary benefits than the senior employees irrespective of the cadre. The law relating to the inter se seniority on merger/integration of posts is well settled. It is only in the absence of any rule specifically providing for inter se seniority, the question of total length of service in the department or the date of initial entry into the regular service of the department would come into play.

20. On the other hand, learned senior counsel appearing for the contesting respondents argued that the rules governing the inter se placement in the restructured cadres have paved way for the junior DEOs to have a steep march over the senior employees of the erstwhile ministerial cadre. It was submitted that the LDCs who chose to remain in the ministerial cadre are severely prejudiced and affected by the new recruitment rules. In view of the limited number of posts in the erstwhile technical cadre, the LDCs who exercised their option to be appointed as DEOs have earned accelerated promotions in a short span of time whereas, the LDCs, who chose to remain in the same post, were stagnated in the same post due to lack of promotional prospects. The accelerated promotions which the DEOs earned in the erstwhile technical cadre is now put to the disadvantage of the LDCs/UDCs/UDCs Special Pay while fixing the inter se seniority in the restructured cadre. By virtue of the new recruitment rules, the higher posts in the Executive Cadre of the Department would be blocked by the DEOs who are far juniors to the UDCs.

21. It was further argued that when the erstwhile ministerial cadre and the technical cadre were part of the same service and when admittedly the posts of DEO Grade A in the technical cadre were filled up only by drawing the willing LDCs from the ministerial cadre, while merging/integrating the posts of the said two cadres, the inter se placement in the restructured cadre should be determined on the basis of total years of service put in by the respective employees. In other words, the date of joining the service as LDC should be the relevant date for fixing the inter se seniority between the erstwhile ministerial cadre staff and the technical cadre staff. The Department has failed to take into consideration the relevant factors for fixing the inter se seniority, but prescribed the norms for fixing the inter se seniority solely on the basis of the scales of pay, which is against the decisions of the Supreme Court. Scales of pay of the respective grade cannot be and should not be the sole criteria for fixing the inter se seniority on merger/integration of posts. When different posts in the ministerial cadre and the technical cadre are merged/integrated, it is reasonable to take into consideration the original date of entry into service of the Customs Department for fixing the inter se seniority in the restructured cadre.

22. Learned senior counsel also submitted that the contesting respondents have already been promoted as Preventive Officers on ad hoc basis and as per the present vacancy position, there is no possibility of any of them getting regular promotions within the next two years and, therefore, the gestation period of two years provided in the recruitment rules for the post of Preventive Officers during which UDCs would be eligible for the promotion as Preventive Officer is rendered futile. A peculiar and anomalous situation would arise wherein the respondents who are presently Preventive Officers would be reverted after two years if not regularised within two years and persons who are DEOs Grade A at present would be promoted as Preventive Officers as they would ascend to the post of Senior Tax Assistant by virtue of the seniority provided for in the recruitment rules. Equating the post of UDC with that of DEO for the purpose of merger/integration of posts and fixing the inter se seniority on that basis is illegal and arbitrary. The cadre of DEOs was formed from out of the LDCs of the ministerial cadre and it was categorically informed that the DEOs cannot come back to the ministerial cadre. In view of the limited number of posts in the DEOs cadre, many of the DEOs Grade D earned accelerated promotions to Grade C, Grade B and Grade A. In such circumstances, redesignating the DEOs as Tax Assistants and giving them the benefit of inter se seniority on par with the UDCs in the restructured cadre is discriminatory and unreasonable. Learned senior counsel further argued that 'UDC Special Pay' is not a separate post or cadre. Those UDCs who perform certain special function are given the special pay and on the ground of grant of special pay, those UDCs who are drawing special pay cannot be classified as a separate class of employees 'UDC Special Pay' for the purpose of placing them in the restructured cadre. The UDCs together form a single cadre and class and any sub-classification on the basis of special pay is violative of the principles of reasonable classification. Therefore, all those employees in the post of UDC irrespective of the fact whether they are drawing special pay or not should be accommodated as Senior Tax Assistants.

23. Heard the learned counsel for the parties. We have also carefully gone through the new recruitment rules and other materials placed before us.

24. The contesting respondents have not challenged the entire rules relating to the restructure of the cadres and the merger/integration of ministerial cadre and technical cadre before the Tribunal. It is only the rules relating to the fixation of inter se placement of the erstwhile ministerial cadre staff and the erstwhile technical cadre staff in the restructured cadre which are challenged before the Tribunal. The contesting respondents, who are presently working as Preventive Officers on ad hoc basis, claim that for determining the inter se placement of the ministerial cadre staff and the technical cadre staff in the restructured cadre, the date of initial appointment in the services of the Central Excise and Customs Departments should be taken into consideration. On the other hand, the writ petitioners claim that the fixation of inter se seniority should be on the basis of the date of regular appointment in the respective grades, but subject to the condition that inter-se placement in the respective category, is legal and reasonable.

25. For better appreciation of the rival contentions, it is necessary for us to quote the Rule 5 of STA RR, 2003 and Rule 4 of TA RR, 2003, which deal with the inter se placement of the ministerial cadre staff and the technical cadre staff in the restructured cadres of Senior Tax Assistant and Tax Assistant. The said rules read as follows: "5(ii): Assistants (Rs.5000-8000) and Data Entry Operator Grade "C" (Rs.5000-8000) are being designated as Senior Tax Assistants in the same Scale of Pay. Therefore, the Assistants and Data Entry Operator Grade "C" shall be placed en block senior to the other categories. However, their inter se placement shall be done according to the date from which they had actually appointed to these Grades on regular basis subject to the condition that their inter se placement in their respective category shall not be altered. Rule 4(4): The Upper Division Clerks and Data Entry Operator Grade-A shall be placed en block senior 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 the respective grade shall not be disturbed.

26. The core argument of the learned senior counsel appearing for the petitioners is that the restructuring of the cadres by merging/integrating the posts in a Government Department is the prerogative of the Government and essentially it is a policy decision of the Government and therefore, the scope of review by the Court is limited.

27. This Court is aware that Article 309 of the Constitution empowers the Legislature to 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. The proviso to Art.309, however, empowers the President, in the case of services and posts in connection with the affairs of the Union, to make Rules regulating the recruitment and conditions of service of persons appointed to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature. The power to regulate recruitment and conditions of service is wide and would include the power to constitute a new cadre by merging certain existing cadres. In the cases on hand, this Court is not called upon to decide the legality or otherwise of the merger/integration of the cadres ordered by the Government but only the question of fixation of inter se seniority between different cadres pursuant to the merger/integration, thus affecting the promotional opportunities of certain categories, which squarely falls within the ambit of judicial review. Thus, answering the argument of the learned senior counsel for the petitioners, now, we would proceed to examine the legality of Rules 5 (ii) of STA RR, 2003 and Rule 4(4) of TA RR, 2003, which are under challenge.

28. The Apex Court in THE STATE OF MAHARASHTRA AND ANOTHER vs. CHANDRAKANT ANANT KULKARNI AND OTHERS (AIR 1981 SC 1990) has formulated the following principles for being observed, as far as may be, in the integration of Government servants allotted to the services of the new States, which are equally applicable for the cases of merger/integration of posts: "In the matter of equation of posts:-

(i) Where there were regularly constituted similar cadres in the different integrating units the cadres will ordinarily be integrated on that basis; but (ii) Where, however, there were no such similar cadres the following facts will be taken into consideration in determining the equation of posts - (a) nature and duties of a post;

(b) powers exercised by the officers holding a post, the extent of territorial or other charge held or responsibilities discharged; (c) the minimum qualifications, if any, prescribed for recruitment to the post, and (d) the salary of the post."

Since in the cases on hand there were no regularly constituted similar cadres, while determining the equation of posts, clauses (a) to (d) of clause (ii) above would apply. Therefore, now we have to examine the nature of duties, responsibilities etc. of both the swording cadres viz. Data Entry Operators and LDCs/UDCs/Special Pay UDCs/Tax Assistants.

29. From a perusal of the entire materials available on record, we are able to assess that the post of LDC is a direct recruitment through Staff Selection Commission and the minimum educational qualification prescribed for the same is SSC and some LDCs were appointed from the Employment Exchanges also, whereas for a direct UDC, the minimum educational qualification prescribed is any Bachelors Degree. Therefore, it cannot be said that the Data Entry Operators are having higher educational qualifications than the UDCs/Special Pay UDCs/Tax Assistants.

30. It is an admitted fact that the petitioners were appointed as the direct lower division clerks and on creation of Data Entry Operator posts, they have given options to be appointed as Data Entry Operators. Likewise, out of 114 vacancies of Data Entry Operators, 62 posts were filled from out of the LDCs who opted to be appointed as Data Entry Operators and the rest of 52 vacancies were filled by inter-collectorate transfers. In the erstwhile system of ministerial cadre, which consisted of LDCs, UDCs and Tax Assistants, an LDC could claim promotion to the post of UDC/UDC Special Pay from where his next promotion would be to the post of Tax Assistant. A person who completed his service for a period of five years in the category of UDC or a total service of five years both in the category of UDC and Tax Assistant would become eligible to the post of Inspector. But, insofar as the Data Entry Operators are concerned, which was divided into four grades viz. Grade A, Grade B, Grade C and Grade D with enhanced scales of pay, their promotion channel was from Grade 'A' to Grade 'B' and so on and so forth, with no difference in nature of duties.

31. Insofar as a person working as LDC, he need to pass the Departmental Examinations containing Central Excise and Customs Law and Administrative Rules, Establishment Rules etc. so as to be promoted to the higher post of UDC. Similarly, a promotee UDC has to pass the Department Examinations, which include the Central Excise and Customs Law, FEMA Regulations etc. for attaining qualification to be promoted to the cadre of Tax Assistant. But, no such departmental tests were prescribed for the Data Entry Operators to move to the next promotional cadre i.e. from Grade A to Grade B and so on. Likewise, on promotion from LDC to UDC and thereafter to Tax Assistant or Inspector, while the nature of duties and responsibilities would increase manifold, in case of Data Entry Operators, in spite of their moving upwards in the promotional cadres like from Grade 'A' to Grade 'B', admittedly, the nature of duties does not change and the same remains as mere data entry rather with no enhanced responsibilities as in the case of a LDC who gets promoted to UDC etc.

32. A tabular chart showing the detailed account of duties to be performed and the responsibilities to carry by LDCs/UDCs/Tax Assistant was furnished by the respondents, which shows that the LDCs/UDCs/Tax Assistants were performing complex nature of duties, which is not the case of a Data Entry Operator. The tabular chart depicts a picture that higher the promotion, higher the responsibility criterion in the case of LDCs/UDCs/Tax Assistants. Taking note of the complex nature of duties they perform, some of the UDCs were classified as Special Pay UDCs also, who were given Special Pay for performing the work assigned to them, which would be taken into account for fixation of pay in the higher post. While prior to restructuring, the Data Entry Operators promotional avenue is within the cadre viz. from Grade 'A' to Grade 'B' and so on and were not eligible for further promotion into the executive cadre i.e. Inspector of Central Excise, with the advent of the cadre restructuring, they were afforded promotional avenue to the executive cadre also.

33. But, we are able to see that the inter se seniority between the Data Entry Operators and LDCs/UDCs was fixed taking into prime consideration only the pay, without regard to the nature and responsibilities of duties, powers exercised etc. A strenuous argument was advanced on the part of the petitioners that inasmuch as the scales of pay were fixed by the Pay Commission, on the basis of the nature of the duties, the same cannot be interfered with. It was also contended on the part of the learned senior counsel for the petitioners that seniority is not a fundamental right and a mere hardship cannot be a ground for striking down a valid legislation and relied on a judgment of the Apex Court in PRAFULLA KUMAR DAS AND OTHERS vs. PRADIP CHANDRA PARIJA AND OTHERS [(2003) 11 SCC 614].

34. It was a case wherein the members of Orissa Subordinate Service Class III were merged with the Orissa Administrative Service-II and a single integrated Orissa Administrative Service, Class-II was created the direct recruits though joined service in 1975 were given 1973 as their year of allotment and the mergerists who were born in the integrated service on the date of merger i.e. 21.12.1973 were consequently denied seniority with respect to the respondents. In the said context, the supreme Court held that "Seniority is not a fundamental right but is merely a civil right. The right of seniority in the present case was also not a vested or accrued right.... The petitioners herein seek benefit to which they are not otherwise entitled. The legislature, has the requisite jurisdiction to pass an appropriate legislation which would do justice to its employees. Even otherwise a presumption to that effect has to be drawn. If a balance is sought to be struck by reason of the impugned legislation, it would not be permissible for the Supreme court to declare it ultra vires only because it may cause some hardship to the petitioners. A mere hardship cannot be a ground for striking down a valid legislation unless it is held to be suffering from the vice of discrimination or unreasonableness. Article 14 is not attracted in the present case."

35. We have no quarrel with the proposition of law enunciated by the Apex Court. But, in the cases on hand, all the parties emerge from the same cadre of LDC and only by virtue of option, some parties have opted to the post of Data Entry Operators and by virtue of the impugned Rules they were afforded fortuitous advantage that too without any stringent conditions like passing the Departmental Tests like the case of a LDC who is required to pass the same to seek promotion to the next category of UDC, while the rest of the LDCs. who have not opted for the post of Data Entry Operators and were stick on to the much higher responsible position, were put in a most disadvantageous position. The inter se seniority has been fixed by the impugned Rules only based on the pay and giving a go-bye to all the norms prescribed by the Apex Court. Since the impugned legislation suffers from the vice of discrimination and unreasonableness, we hold that the impugned Rules are arbitrary and violative of Articles 14 and 16 of the Constitution, since they give unreasonable advantage and a steep forward for an otherwise low category persons like Data Entry Operators as against the LDCs/UDCs/Tax Assistants, who perform highly responsible and complex duties unlike mere entering a data by the Data Entry Operators.

36. Further more, the learned senior counsel for the petitioners/Data Entry Operators further contended that the chances of promotion is not a fundamental right and therefore, the provisions relating to the inter se seniority in new recruitment rules cannot be quashed on the ground that promotion chances of certain employees were either shrunk or completely lost.

37. In BADNINATH vs. GOVERNMENT OF T.N. [(2000) 8 SCC 395], the Apex Court has held that: "Every officer has a right to be considered for promotion under Article 16 to a higher post subject to eligibility, provided he is within the zone of consideration. But the manner in which his case is to be considered is a matter of considerable importance in service jurisprudence as it deals with "fairness" in the matter of consideration for promotion under Article 16." Therefore, in the light of the above categorial finding rendered by the Apex Court, the argument of the learned senior counsel for the petitioners/Data Entry Operators that promotion is not a fundamental right does not hold water and the same has to be rejected outright.

38. It was shown, by instances, by the learned senior counsel for the respondents that while in a short span of time, that too, without any condition like passing out any Departmental Text, the Data Entry Operators moved from one Grade to other with higher pay structure, the LDCs, who have not opted for the post of Data Entry Operator, have remained and stagnated as LDCs. itself and because of the impugned Rules, the position has further worsened, since it blocked their further promotional avenues, by placing persons like Data Entry Operators, who have already enjoyed the fruits of promotion more than once, over and above LDCs/UDCs/Tax Assistants in the inter se seniority list. It is to be mentioned that promotion is an incidence of service.

39. At this juncture, it is relevant to quote a passage from Page No.246 of the 4th Edition of 'Principles of Personnel Management' by Flipo Edwin B., famous author on personnel management, which reads as follows: "... It is often said and indeed, adroitly, an organisation, public or private does not 'hire a hand' but engages or employs a whole man. The person is recruited by an organisation not just for a job, but for a whole career. One must, therefore, be given opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well."

39. At page No.277 of 'Personnel management' by another famous author on personnel management Dr.Udai Pareek, it has been quoted: "Every management must provide realistic opportunity for promising employees to move upward. The organisation that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale and ineffectual performance, among both non-managerial employees and their supervisors."

40. Quoting both the above passages, the Apex Court in COUNCIL OF SCIENTIFIC AND INDUSTRIAL RESEARCH AND ANOTHER vs. K.G.S.BHATT AND ANOTHER (AIR 1989 SC 1972 = (1989) 4 SCC 635) has held that "There cannot be any modern management much less any career planning, manpower development, management development etc., which is not related to a system of promotions."

41. In Dr.Ms.O.Z.HUSSAIN vs. UNION OF INDIA (1990 (Supp) SCC 688), the Apex Court has held as follows: ".... Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other ministries would have the benefit of promotion, the non-medical 'A' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and therefore, it should have been the obligation of the Ministry of Health to attend, to the representations of the Council and its members and provide promotional avenue for this category of officers."

42. In STATE OF TRIPURA AND OTHERS vs. K.K.ROY [(2004) 9 SCC 65], the Apex Court, relying on the above judgments, has observed: "It is not a case where there existed an avenue for promotion. It is also not a case where the State intended to make amendments in the promotional policy. The appellant being a State within the meaning of Article 12 of the Constitution should have created promotional avenues for the respondent having regard to its constitutional obligations adumbrated in Articles 14 and 16 of the Constitution of India. Despite its constitutional obligations, the State cannot take a stand that as the respondent herein accepted the terms and conditions of the offer of appointment knowing fully well that there was no avenue of appointment, he cannot resile therefrom. It is not a case where the principles of estoppel or waiver should be applied having regard to the constitutional functions of he State. It is not disputed that the other States in India, Union of India having regard to the recommendations made in this behalf by the Pay Commission introduced the scheme of Assured Career Promotion in terms whereof the incumbent of a post if not promoted within a period of 12 years is granted one higher scale of pay and another upon completion of 24 years if in the meanwhile he had not been promoted despite existence of promotional avenues.... Promotion being a condition of service and having regard to the requirements thereof as has been pointed out by this Court in the decisions referred to hereinbefore, it was expected that the Appellant should have followed the said principle."

43. A forcible argument was advanced on the part of the respondents demonstrating how by virtue of the impugned Rules, the LDCs, who have not opted to be posted as Data Entry Operators were severely prejudiced and how the restructured cadres have paved way for the junior DEOs to have a march over the other senior employees of the erstwhile ministerial cadre and get fortuitous advantage. It has also been demonstrated by materials how the impugned Rules are working hard against the senior eligible candidates without any promotional avenue, since being blocked by the far junior Data Entry Operators. Though, as held by the Apex Court, seniority is not a fundamental right, the State should have created promotional avenues for the respondents having regard to its constitutional obligations adumbrated in Articles 14 and 16 of the Constitution of India.

44. Therefore, the official respondents would not be justified in blocking the promotional avenues of the respondents/UDCs or Tax Assistants, as the case may be, without framing proper rules and framing faulty and arbitrary Rules like the ones in dispute. Promotion, as held by the Apex Court is an condition and incidence of service and as held by the Apex Court in the above Judgement, even there is an obligation on the part of the State under Articles 14 and 16 of the Constitution to create promotional avenues for the employees and any Rule or procedure, which goes against the above dictum, could well be termed as an arbitrary exercise of power and violative of Articles 14 and 16 of the Constitution.

45. The impugned Rules put LDCs/UDCs/Special Pay UDCs/Tax Assistants in a most disadvantageous position than their far juniors of Data Entry Operators, even though the nature of duties and powers exercised by them while holding the post of LDCs/UDCs/Special Pay UDCs/Tax Assistants not only carry a complex nature of duties but also high responsibilities, which would increase manifold by promotion from LDC to UDC/Special Pay UDC and from UDC/Special Pay UDC to Tax Assistant. Therefore, we have no hesitation to hold that the impugned Rules are violative of Articles 14 and 16 of the Constitution and are liable to be quashed.

46. We have given our anxious consideration to all the aspects of the case put forth by both sides and found that the Tribunal has analysed the case in a proper perspective and having regard to the guidelines issued by the Apex Court regarding fixation of inter se seniority in such cases and has arrived at an unerring conclusion to hold that the seniority principle stipulated in the impugned notifications is unfair to the ministerial cadre of the Department and considering any other date than the date of initial appointment is discriminatory and arbitrary. We are unable to find any illegality or irregularity or perversity in approach in the well considered and merited decision arrived at by the Tribunal. Therefore, we see no merit in the contentions raised by the petitioners/Data Entry Operators and the same deserve to be rejected. In the result, all the above writ petitions are dismissed confirming the orders of the Tribunal in the O.As. We direct the official respondents to implement the directions of the Tribunal within a period of three months from the date of receipt of a copy of this order. No costs. Consequently, all the connected W.P.M.Ps. are closed. Jai/Rao To

1.The Secretary to Government of India,

Ministry of Finance & Company Affairs

(Department of Revenue)

New Delhi-110001.

2.The Commissioner of Customs,

Customs House,

Chennai-600001.

3.The Central Administrative Tribunal,

Madras.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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