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Judgment
O R D E R
Per: Mr. Anindo Majumdar, Administrative Member:
Central Administrative TribunalThe applicant has approached this Tribunal under section 19 of the Administrative Tribunal Act, 1985 praying for the following relief(s):
“(a)Leave may be granted to the applicants to file this application jointly under Rule 4(5)(a) of the Central Administrative Tribunal (Procedure) Rules, 1987 as because all the applicants' grievances are common and they are challenging the same impugned orders;
(b)To modify and/or to rectify the impugned office order F. No. A. 12018/01/2012.AD.III.B dated 25.01.2023 & 15.05.2023 and the impugned office order F. No. A.32018/01/2023-Ad.IIIA dated 15th May, 2023 issued by the Government of India, Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes & Customs being Annexure A-12 of this original application by deleting the paragraphs 3(ii) of the said impugned office order and incorporate the paragraphs 2 and 3 of the OM dated 09.05.2022 issued by the DOPT as well as UPSC approval dated 23.12.2022 in respect of granting One-Time Relaxation for promotion to the post of Executive Assistant and also in consideration of the DOPT's clarification dated 30.01.2022 being Annexure A-5 of this original application;
(c)To quash and/or set aside the impugned order of promotion being No. CCA/19/2023 dated 09.06.2023 issued by the Assistant Commissioner (CCA) in the office of the Principal Chief Commissioner, Central GST and Central Excise, Kolkata Zone, Central GST Bhawan, 180 Shanti Pally, R.B. Connector, Kolkata-700107 being Annexure A-17 of this original application in favour of the private respondents who got promotion on the strength of the impugned office order dated 15.05.2023 being Annexure A-12 of this original application which is utter violation of the clarification issued by the DOP&T as well as UPSC which are appearing at Annexure A-6 and A-7 of this original application, and to quash & Set aside the impugned order dt. 15.05.2023.
(d)To declare that the applicants who have joined in the post of Tax Assistant with effect from 2013, 2014 and 2015 and after completion of more than 9 years of service for holding the post of Tax Assistant, your applicants are entitled to get promotion on regular to the post of Executive Assistant in terms of the DOP&T OM dated 09.05.2022 being Annexure A-5 and A-6 of this original application and in terms of the office order dated 23.12.2022 issued by the UPSC being Annexure A-7 of this original application and also in terms of the office order dated 29.12.2022 issued by the Government of India, Ministry of Finance, Department of Revenue, Central Board of Indirect Taxes & Customs and to give all consequential benefits by granting the regular promotion to the post of Executive Assistant in favour of the applicants with effect from the date of their eligibility.
(e)To declare that the minimum relaxation is permissible i.e. 50% that means as per the original Recruitment Rules, the incumbent has to be completed 10 years' regular service in the grade of Tax Assistant and in terms of the said Recruitment Rules of 2015 only they will get the promotion to the post of Executive Assistant. Since the department placed the matter before the DOP&T as well as UPSC and requested the said authorities to grant One-Time Relaxation of the Cadre of Tax Assistant by relaxation of 10 years' service to 6 years. Since it is below 50% of relaxation of the experience, the DOP&T as well as UPSC has approved and all the present applicants are entitled to get One-Time Relaxation as per the approval Central Administrative Tribunal orders issued by the DOP&T as well as UPSC in respect of regular service to the post of Executive Assistant. By depriving these present applicants by issuance of the impugned office order dated 15.05.2023 another relaxation has been made by the department from 6 years to 4 years without taking approval from the DOP&T as well as UPSC and on the strength of that most of the juniors have got the promotion to the post of Executive Assistant those who have not completed 6 years' regular services in the Cadre of Tax Assistant. Such promotions of the private respondents are bad in law and illegal and may be liable to be quashed and/or set aside in the eye of law along with impugned order dt. 15.05.2023.
(f)Pass any other order or orders that may deem fit in the circumstances of the case.”
Facts of the case
At the time of filing the instant Original Application, the applicants were holding the post of Tax Assistant in the Central Board of Indirect Tax and Customs (CBIC). During the pendency of this Original Application, four applicants namely, Shri Ajay Kumar, Shri Rajiv Kumar, Shri Rakesh Kumar and Shri Sanjay Kumar Shaw have been promoted to the grade of Executive Assistant in CBIC in the year 2023.
The Recruitment Rules for the post of Executive Assistant in the Central Board of Indirect Tax and Customs (CBIC) were notified on 28.09.2015 (Annexure A-4). As per the said Recruitment Rules, 60% of the posts of Executive Assistant are to be filled by promotion and 40% by direct recruitment. The recruitment rules provides that Tax Assistants in Pay Band-1 with 10 years of regular service in the grade and having passed the departmental examination are being eligible for promotion to the post Executive Assistant. The qualifying service as stipulated in the said Recruitment Rules for the post of Executive Assistant had been raised from three years in the earlier recruitment rules to ten (10) years. The Department Central Administrative Tribunal of Personnel & Training vide their I.D. Note dated 09.05.2022 (Annexure A-6) informed the Department of Revenue that the competent authority in consultation with the Union Public Service Commission had, in exercise the power conferred in Rule 7 of the RRs, accorded approval for relaxation of the RRs for the post of Executive Assistant in respect of those Tax Assistants who were in position as on the date of notification of the RRs in 2015 i.e. 28.09.2015 for their promotion to the Grade of Executive Assistant.
Subsequently, Department of Personnel & Training vide their letter dated 16.12.2022 addressed to the Union Public Service Commission (UPSC) have clarified that one time relaxation has been granted for consideration of promotion of these Tax Assistant who have completed more than 06 years of service as on 01.01.2022 for filling up 1994 vacant posts of Executive Assistants during the vacancy year 2022.
The Union Public Service Commission (UPSC), vide letter dated 23.12.2022 (Annexure A-7) addressed to the Secretary to the Government of India, Ministry of Finance have stated as under:
“5. In view of the above clarification of DOP&T, the approval of the Commission in the qualifying service is hereby accorded to consider those Tax Assistants who were in position as on the date of notification RRs in 2015 i.e. 28.09.2015 and who have completed more than 06 years of regular service as on 01.01.2022, for filling up vacancies of Executive Assistant during the vacancy year 2022, as approved by DOP&T.”
The different cadre controlling authorities under the CBIC field formation had requested the Central Board of Indirect Taxes and Customs (CBIC) to clarify the following :-Central Administrative Tribunal
A. Applicability of the one time relaxation to Inter Commissionerate Transfer (ICT cases).
B. The application of One Time Relaxation “Senior – Junior Clause submitted in the Recruitment Rules”.
The Central Board and Indirect Taxes and Customs (CBIC), vide their letter dated 15.05.2023 (Annexure A-12) addressed to all the Cadre Controlling Authorities under CBIC field formations have clarified as under:
“(i) OTR for EA has to be read harmoniously with the provisions of RRs of EA, including Senior Junior clause. In case a junior is eligible under OTR, his / her seniors also be considered as per senior junior clause, provided such a senior has a minimum of 4 years qualifying service as on 01.01.2022 (reducing two years from the six years qualifying service with which the junior is being promoted).
(ii)All those who joined in TA grade, in any field formation of CBIC, on or before 28.09.2015 to be considered eligible for OTR. In case of ICT transferees who joined in TA grade initially on or before 28.09.2015 and got transferred to another zone after 28.09.2015, the current zone where they are posted should consider them under OTR, duly counting the length of service from date on which they joined as TA initially in the previous zone.”
A meeting of the Review Departmental Promotion Committee (DPC) was held on 06.06.2023. On the basis of the recommendations of the said committee and after obtaining the approval of the Chief Commissioner, CGST & Central Excise, Kolkata Zone 93 officers were promoted from the post of Tax Assistant to Executive Assistant, vide order No. CCA/19/2023 and order No. CCA/20/2023 dated 09.06.2023.
Although the applicants were considered to be eligible for promotion, they were not promoted to the grade of Executive Assistant. Aggrieved, the applicants have filed the instant Original Application seeking the relief(s) mentioned at Para 1 above.
Heard the Ld. Counsel for both the parties and considered the material on record.
The submissions made by the Ld. Counsel for the applicants are summarized below:
The applicants were appointed for the post Tax Assistant in the Grade Pay of Rs. 2400/- (Level-4) through the Combined Graduate Level Examination (CGLE) 2012 and posted in the Chennai and Chandigarh Zones on various dates in the years 2013 and 2014. They were subsequently transferred at their own request to Kolkata Zone in terms of the Inter Commissionerate Transfer (ICT) Policy dated 27.10.2011 (Annexure A-3). They had joined the Kolkata Commissionerate on different dates during the years 2018, 2020 and 2022.
The Private Respondents in the instant Original Application had passed the Combined Graduate Level Examination during the years 2013, 2014 and 2015 and had joined the Kolkata Commissionerate after 28.09.2015 (i.e. date of Notification of the existing RR for the post of Executive Assistant). The initial date of appointment of the applicants in their parent zones is earlier than that of the Private Respondents. Since the applicants had joined the Kolkata Commissionerate at transfer at their own request under the ICT policy, they were assigned bottom seniority in the cadre of Tax Assistant and were placed below the Private respondents in the seniority list.
The applicants fulfill the criteria as prescribed for grant of One time Relaxation in qualifying service for promotion to the grade of Executive Assistant as approved by DoPT and UPSC to be considered for promotion to the post of EA from TA since all the applicants were appointed prior to 28.09.2015 in their parent zone and had completed more than 6 years of regular service as on 01.01.2022.
The respondents have provided unintended benefits to the Private Respondents. The Private Respondents were appointed to the post of Tax Assistant after 28.09.2015 and had not completed 06 years of regular service as on 01.01.2022 as required under the One Time Relaxation Scheme. They had been provided dual benefit not only by way of One Time Relaxation but also in terms of the provision of the “senior and junior clause” of the RR and have been wrongly promoted to the grade of Executive Assistant.
One time relaxation in qualifying service was approved only for those Tax Assistant who were in position as on the date of notification of RRs in 2015 i.e. on 28.09.2015 and for those among them were completed more than 06 years of regular service as on 01.01.2022 for the vacancy year 2022.
One Time Relaxation has been approved by the DoP&T in consultation of the UPSC and same cannot be altered and/or misinterpreted for granting benefits to the Private Respondents.
DoPT vide their letter dated 28.07.2023 has not agreed to the request of the Department of Revenue to extend the one time relaxation to those Tax Assistants who have joined after 28.09.2015.
None of the Private Respondents were appointed in the grade of Tax Assistant as on 28.09.2015 or prior to that. Further, the private respondents have not completed six years of regular service as on 01.01.2022 and are therefore not eligible to get the benefit of relaxation in qualifying service under the One Time Relaxation granted by DPC.
At hearing, the submissions made by the Ld. Counsel for the respondents are summarized below:
The instant application is infructuous since 04 of the 06 applicants namely S/Shri Ajay Kumar, Rajiv Kumar, Rakesh Kumar and Sanjay Kumar have been promoted to the grade of Executive Assistant w.e.f. 01.01.2024 on the basis of recommendations of the Annual DPC held on 27.12.2023 and no further cause of action survives for these applicants.
Promotion is not a matter of right but is governed by the Recruitment Rules and availability of vacancies and merely because an employee is eligible for promotion does not confer upon him any right to promotion.
As per the notified Recruitment Rule, 10 years of regular service in the grade of Tax Assistant is essential for being considered for promotion to the grade of Executive Assistant. The requirement of qualifying service as stipulated in the Recruitment Rule notified on 28.09.2015 was relaxed by a One Time Relaxation (OTR) granted by the Department of Personnel and Training (DoP&T) in consultation with and the Union Public Service Commission (UPSC) in the qualifying service stipulated in the Recruitment Rules.
The Competent Authority in CBIC, vide letter dated 15.05.2023 has clarified that:
“(i) OTR for EA has to be read harmoniously with the provisions of RRs of EA, including Senior Junior clause. In case a junior is eligible under OTR, his/her seniors also be considered as per senior junior clause, provided such a senior has a minimum of 4 years qualifying service as on 01.01.2022.
(ii)All those who joined in TA grade, in any field formation of CBIC, on or before 28.09.2015 to be considered eligible for OTR. In case of ICT transferees... the current zone where they are posted should consider them under OTR, duly counting the length of service from date on which they joined as TA initially in the previous zone.”
The said letter dated 15.05.2023 interprets the existing Recruitment Rules and it does not create any new rights but merely clarifies the existing Recruitment Rules.
At the meeting of the Review DPC was held on 06.06.2023, the committee considered length of service of all the applicants by taking into account the date of joining in their respective previous zones.
The applicants could not be recommended by for promotion to the grade of Executive Assistants by the DPC held on 06.06.2003 due to non availability of vacancies in the unreserved category for vacancy year 2022. It is a settled law that promotion can be granted only against the available vacancies.
Department of Personnel and Training (DoPT), vide it’s letter dated 31.01.2022 has clarified that fixation of seniority of officers transferred from one Commissionerate to another on their own requests are governed by CBEC instructions dated 27.10.2011 and that as such, DoP&T’s instructions for determination of seniority are not applicable to ICT cases in the Department of Revenue.
The instruction of CBIC contained in it’s letter dated 27.10.2011 stipulates that “The transferee will be placed below all officers appointed regularly to that post/ grade on the date of his/ her appointment on transfer basis” and “such transferred officer will be retain his/ her eligibility of the parent Commissionerate for his/ her promotion to the next higher grade”.
The eligibility of the applicants were counted from the initial date of joining and seniority in the current zone was fixed as per ICT rules.
The “Senior-Junior” clause of the Recruitment Rules is a statutory provision and is part of the Recruitment Rules and is not an Executive Instruction or Administrative Guideline and the same is required to be applied for promotions are considered.
The Hon’ble Apex Court has in the case of Pankaj Nayan & Ors. v. UOI & Ors. (Delhi High Court) has permitted the application of Senior-Junior clause even if it was not part of the Recruitment Rules, recognizing it is a principle of natural justice in service jurisprudence. In the present case, it is already part of the Recruitment Rules.
Ld. Counsel for the respondents cited the following judgements:
“1.Union of India Vs. N.R. Banerjee (1997) 9 SCC 287 promotion only against vacancies; no right to promotion irrespective of vacancies.
2.Smt. Suman Vs. State of Rajasthan (2019) 6 SCC 246 petition becomes infructuous when main relief granted during pendency.
3.B.C. Chaturvedi Vs. Union of India (1995) 6 SCC 749 scope of judicial review is confined to decision-making process.
4.Pankaj Nayan & Ors. Vs. UOI & Ors. (Delhi High Court) Senior-Junior clause is a principle of natural justice.
5.State of J&K Vs. Sat Pal (2013) 11 SCC 737 clarificatory circulars are retrospective in operation.
6.Chairman, Railway Board Vs. C.R. Rangadhamaiah (1997) 6 SCC 623 rules can be relaxed in public interest with appropriate approvals.”
Discussion and Findings
The facts of the case have already been outlined in detail in the preceding paragraphs and need not be repeated. The applicants are aggrieved by the fact that they were not promoted to the grade of Executive Assistant vide orders No. CCA/19/2023 & No. CCA/20/2023 dated 09.06.2023.
The applicants have submitted that the respondents had promoted 93 ineligible candidates by granting additional relaxation on qualifying service and as a result of that no vacancy was available for their promotion to the grade of Executive Assistant. Central Administrative TribunalHowever, the applicants have not provided details of such ineligible candidates in the pleadings or during hearing. Moreover, the applicants have impleaded only 23 such candidates as private respondents in the instant O.A.
The applicants have contended that in addition to the One Time Relaxation granted by the Department of Personnel and Training in consultation with the Union Public Service Commission by reducing the minimum qualifying service for promotion to the grade of Executive Assistant as prescribed in the Recruitment Rules from 10 to 06 years, the Central Board of Indirect Taxes and Customs (CBIC) have granted an additional 02 years of relaxation to certain Tax Assistants by invoking the Senior Junior clause in the Recruitment Rules.
The applicants have contended that grant of additional relaxation of 02 years of qualifying service to certain Tax Assistants by the CBIC over and above the One Time Relaxation in qualifying service granted by the Department of Personnel and Training in consultation with the UPSC is absolutely irregular since no prior approval from the DoP&T and UPSC was obtained by the CBIC.
The respondents, on the other hand, have justified the grant of additional relaxation of 02 years over and above One Time Relaxation in qualifying service on the ground that there is such provision in the Recruitment Rules for the grade of Executive Assistants.
An extract from the Recruitment Rules notified vide Notification dated 28th September, 2015 (Annexure A-4) is reproduced below:
AGE: NO Two years 60% by Promotion: EQS: NO promotion and Tax Assistant in the Pay Band-1. Rs. 5200-40% by direct 20200 with grade pay of Rs. 2400/- with Central Administrative Tribunalrecruitmentten years of regular service in the grade through Staff and have passed the departmental Selection examination as specified by the Commission competent authority from time to time.
Notel: Where juniors who have completed their qualifying or eligibility service are being considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying or eligibility service by more than half of such qualifying or eligibility service or two years, whichever is less and have successfully completed their probation period for promotion to the next higher grade along with their juniors who have already completed such qualifying or eligibility service.
Note 2: For the purpose of computing minimum qualifying service for promotion, the service rendered on a regular basis by an officer prior to 1.1.2006 or the date from which the revised pay structure based on the 6th Central Pay Commission recommendations has been extended, shall be deemed to be service rendered in the corresponding grade pay or pay scale extended based on the recommendations of the pay commission.
The Central Board of Indirect Taxes and Customs vide their letter dated 15.05.2023 (Annexure A-12) has issued clarification for granting One Time Relaxation (OTR) in Recruitment Rules for the post of Executive Assistant in CBIC field formations. An extract from the said letter is also reproduced below:
“(i) OTR for EA has to be read harmoniously with the provisions of RRs of EA, including Senior Junior clause. In case a junior is eligible under OTR, his/her seniors also be considered as per senior junior clause, provided such a senior has a minimum of 4 years qualifying service as on 01.01.2022. (ii) All those who joined in TA grade, in any field formation of CBIC, on or before 28.09.2015 to be considered eligible for OTR. In case of ICT transferees... the current zone where they are posted should consider them under OTR, duly counting the length of service from date on which they joined as TA initially in the previous zone.”
The applicants have relied on the order the Principal Bench of this Tribunal in O.A. No. 2342 of 2023. An extract from the same is reproduced below:
“7.25 No doubt the OTR for EA has to be read harmoniously with the provisions of RR's of EA. However, interpreting the including Senior-Junior clause i.e - In case a junior is eligible under OTR, his / her seniors also be considered as per senior junior clause, provided such a senior has a minimum of 4 years qualifying service as on 01.01.2022 (reducing two years from the six years qualifying service with which the junior is being promoted) by itself is contrary to the RR's. Such an interpretation is uncalled for which not only lead to anomalous situation but also disparity to Tax Assistant who were otherwise eligible without any benefit as well as to the persons who would be getting the benefit of OTR, thus, creating a class and sub-class among Tax Assistants dehors the RR's.”
Although, the applicants in the instant O.A. have submitted that 93 ineligible candidates were given “double relaxation” in qualifying service in terms of the clarification issued by the CBIC letter dated 15.05.2023, they have not provided details of such ineligible candidates in the pleadings or during hearing. The applicants have impleaded only 23 such candidates, as private respondents in this O.A.
The private respondents have in their reply to the Original Application, inter alia, annexed the final seniority list of Tax Assistants of CGST & Central Excise, Kolkata Zone as on 31.12.2022. On perusal of the said seniority list, we find that the date of joining of the Private Respondents as Tax Assistants on their first appointment is indicated below:
Sl. Name (Sri/Smt/Miss Educational Date of Birth Category Date of DR/PR Present Present No. Qualification Joining as Satus status of TA in existing Kolkata Tax Assistant s xxx xxx xxx xxx xxx xxx xxx xxx xxx 967 Moumita Das 08.01.1988 Gen 21.12.2015 First DR Appointment 968 Suman Saha B.SC. 11.12.1986 UR 08.12.2015 First DR Appointment 969 Parna Das M.Sc. 27.11.1986 UR 28.01.2016 First DR Central Administrative TribunalAppointment xxx xxx xxx xxx xxx Xxx xxx xxx xxx 971 Arindam Maiti B.Tech. 06.01.1989 UR 16.12.2015 First DR Appointment 972 Madhaw Kr. Singh B.Sc., B.Ed. 10.11.1991 OBC 30.12.2015 Frist DR Appointment 973 Pritam Naskar 30.04.1991 SC 15.12.2015 First DR Appointment xxx xxx xxx xxx xxx xxx xxx xxx xxx 984 Prantik Dutta 16.06.1990 UR 18.05.2016 First DR Appointment 985 Sonam Pathak B.Sc.(H) 04.10.1991 UR 23.05.2016 First DR appointment 986 Sayan Debnath B.Tech. 29.11.1988 UR 11.05.2016 First DR appointment xxx xxx xxx xxx xxx xxx xxx xxx xxx 988 Abhishek Gupta 06.09.1992 OBC 16.05.2016 First DR Appointment 989 Kishor Kumar 15.07.1989 OBC 07.06.2016 First DR Appointment 990 Arindam Mandal B.Sc(H) 09.08.1991 SC 01.06.2016 First DR Appointment xxx xxx xxx xxx xxx xxx xxx xxx Xxx 1065 Prerana 25.04.1995 SC 15.06.2017 First DR Appointment 1066 Keshav 12.04.1992 SC 14.06.2017 First DR Appointment xxx xxx xxx xxx xxx xxx xxx xxx xxx 1068 Sombir Singh B.tech. 17.09.1991 SC 11.05.2017 First DR Appointment 1069 Rajni MBA(Finance) 01.04.1991 SC 15.06.2017 First DR Appointment xxx xxx xxx xxx xxx xxx xxx xxx xxx 1071 Sourav Biswas 26.07.1989 SC 14.06.2017 First DR Appointment 1072 Shovan Mukherjee Class XII 23.12.1983 Gen 01.04.2015 LDC- PR
| Passed | 31.03.2011 | ||||||||||||||||
| xxx | xxx | xxx | xxx | xxx | xxx | xxx | xxx | xxx | |||||||||
| 1074 | Pooja | 01.07.1992 | SC | 20.06.2017 | First Appointment | DR | |||||||||||
| 1075 | Sudev Halder | 06.02.1985 | SC | 02.06.2017 | First Appointment | DR | |||||||||||
| xxx | xxx | xxx | xxx | xxx | xxx | xxx | xxx | xxx | |||||||||
| 1079 | Chandan Kumar Singh | 05.02.1991 | UR-VH | 08.05.2017 | First Appointment | DR | |||||||||||
| xxx | xxx | xxx | xxx | xxx | xxx | xxx | xxx | xxx | |||||||||
| 1086 | Rajesh Ranjan | Graduation | 01.02.1993 | UR-HH | 09.06.2017 | First Appointment | DR | ||||||||||
| xxx | xxx | xxx | xxx | xxx | xxx | xxx | xxx | xxx | |||||||||
| 1090 | Sanat Naskar | 14.05.1967 | SC | 01.04.2015 | LDC-18.07.2011 | PR | |||||||||||
An extract from the letter of Union Public Service Commission addressed to the Secretary to the Government of India, Ministry of Finance, Department of Revenue dated 23rd December, 2022 is reproduced below:
“5. In view of the above clarification of DOP&T, the approval of the Commission in the qualifying service is hereby accorded to consider those Tax Assistants who were in position as on the date of notification RRs in 2015 i.e. 28.09.2015 and who have completed more than 06 years of regular service as on 01.01.2022, for filling up vacancies of Executive Assistant during the vacancy year 2022, as approved by DOP&T.”
23. Central Administrative TribunalThe new Recruitment Rules for the post of Executive Assistant were notified on 28.09.2015. All the private respondents had joined the post of Tax Assistant on their initial appointment after 28.09.2015. Hence, the Private Respondents were not in position as on the date of notification of the new Recruitment Rules i.e. on 28.09.2015 and were therefore not eligible for grant of relaxation in qualifying service for promotion to the grade of Executive Assistant.
We are, therefore, of the opinion that the promotion of the above named Private Respondents to the grade of Executive Assistant, vide the impugned Order No. CCA/19/2023 dated 09.06.2023 was irregular.
We therefore quash and set aside the impugned promotion Order No. CCA/19/2023 dated 09.06.2023 to the grade of Executive Assistant qua the private respondents. It is further directed that the resultant vacancies be filled up by promoting the applicants since they are eligible for grant of relaxation in qualifying service for promotion to the grade of Executive Assistant subject to they being eligible in all respects for such promotion.
With these directions, this O.A. is allowed without any order as to costs. The M.A. is disposed of.