Dismissed

Shri Ajeet Kumar v. Union of India

Karnataka HC18 Aug 2021WP/13110/2021

Case brief

AI extract

What is this about?

This High Court disposed of a Writ Petition challenging the dismissal of an Original Application before the Central Administrative Tribunal. The initial application sought to question the validity of a promotion made without compliance with 2015 Recruitment Rules. The Court, noting the petition was premature as the review mechanism to revert such promotions had not been initiated, dismissed the pe

What did the court decide?

Petition dismissed as it was premature; review DPC not yet held.

Shri Ajeet Kumar Vs Union of India — Pension and Retirement Benefits | Karnataka HC (2021)

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W.P.13110/2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18^TH DAY OF AUGUST, 2021

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PRESENT

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THE HON’BLE MR.JUSTICE SATISH CHANDRA SHARMA

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AND

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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WRIT PETITION No.13110/2021 (S-CAT)

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BETWEEN:

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SHRI AJEET KUMAR S/O SRI RAJENDRA PRASAD BHAGAT, AGED ABOUT 52 YEARS, WORKING AS EXECUTIVE ASSISTANT, COMMISSIONER OF CUSTOMS, CUSTOM DIVISION, KARWAR, M. G. ROAD, KAJUBAG, KARWAR - 581 301. … PETITIONER

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(BY SRI MANGANNAVAR GIRISH BABURAO, ADV.)

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AND:

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UNION OF INDIA REPRESENTED BY SECRETARY TO GOVT., MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI - 110 001.

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CENTRAL BOARD OF EXCISE AND CUSTOMS (CBEC) AND GST BY ITS CHAIRMAN, NORTH BLOCK, NEW DELHI - 110 001.

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THE PRINCIPAL CHIEF COMMISSIONER OF

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W.P.13110/2021

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CENTRAL TAX, BANGALORE, P.B. NO.5400, CENTRAL REVENUE BUILDING, QUEEN'S ROAD, BENGALURU - 560 001. … RESPONDENTS

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(BY SRI NAGARAJ HEGDE, CGSC FOR R1; SRI B.PRAMOD, ADV. FOR R2 & R3)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI, SETTING ASIDE THE ORDER DATED 13.12.2019 PASSED IN O.A.NO.170/00943/2019 PASSED BY THE CENTRAL ADMINISTRATIVE TRIBUNAL, BENGALURU BENCH VIDE ANNEXURE-A CALLING FOR THE RECORDS RELATING OF THE ORDER DATED 13.12.2019 IN OA NO.170/0094/2019 AND ETC.

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THIS PETITION COMING ON FOR ORDERS, THIS DAY, SATISH CHANDRA SHARMA J., MADE THE FOLLOWING:

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O R D E R

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Learned counsel appearing for the parties would submit that identical issue has been decided by this court in Writ Petition No.4474/2020 and other connected matters on 11^th August 2021. The order passed in the said cases is re-produced as under:

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"Regard being had to the similitude in the controversy involved in these cases, they were heard analogously together and a common order is being passed.

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2. The facts of W.P.No.4474/2020 are narrated as under:

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W.P.13110/2021

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The petitioner before this Court has filed the present petition being aggrieved by the order dated 13.12.2019 passed in O.A.No.170/00770/2019 (Manjunath G vs. The Union of India represented by Secretary to Government and others).

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3. The facts of the case reveal that the petitioner before this Court was appointed as a Tax Assistant in the office of the Principal Chief Commissioner of Central Tax, Bengaluru, pursuant to selection by the Staff Selection Commission. He has successfully completed his probationary period. At the relevant point of time, when the petitioner was appointed, promotions were made under the Old Rules from the post of Tax Assistant to the post of Senior Tax Assistant (STA).

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4. The relevant Rules governing the field for promotions are known as Central Excise and Customs Department Senior Tax Assistant (Group C Posts) Recruitment Rules, 2003 (hereinafter referred to as the Recruitment Rules of 2003). The next promotion channel for the post of Tax Assistant was Senior Tax Assistant and the petitioner was certainly entitled for promotion to the post of Senior Tax Assistant.

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5. As already stated earlier, the petitioner was appointed in 2013 and the at the relevant point of time, the qualification prescribed for promotion was

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W.P.13110/2021

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three years of regular service in the post of Tax Assistant. In addition, they were required to pass the departmental examination.

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6. In the year 2015, restructuring and reorganization of the department took place and the post of Deputy Office Superintendent was merged with the post of Senior Tax Assistant and altogether a new cadre i.e., Executive Assistant came into existence. A notification was issued on 15.4.2015 redesignating and merging the two posts.

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7. The notification dated 15.4.2015 is reproduced as under:-

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"F.No.A-11013/18/2015-Ad.IV

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Government of India

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Ministry of Finance

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Department of Revenue

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Central Board of Excise & Customs

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5th Floor, Hudco Vishala Building, Bhikaji Cama Place, New Delhi-110066. dated, the 15th April, 2015.

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All Principal Chief Commissioners/ Chief Commissioners/Principal Commissioners/ Commissioners of Central Excise, Customs and Service Tax

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All Directors General/Directorates under CBEC.

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W.P.13110/2021

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Subject:Re-designation of the posts of Deputy Office Superintendent and Senior Tax Assistant as Executive Assistant — Reg.

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- - -

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Sir/Madam,

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I am directed to convey the approval of the competent authority to the re-designation of the posts of Deputy Office Superintendent (PB-2 Rs.9300-34800 with GP of Rs.4200/-) and Senior Tax Assistant (PB-2 Rs.9300-34800 with GP of Rs.4200/-) as Executive Assistant in Central Board of Excise & Customs, consequent upon cadre restructuring and re-organization of filed formations under the Central Board of Excise & Customs issued vide F.No.A-11019/0812013Ad.IV dated 18.12.2013.

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2. The re-designated post of Executive Assistant will carry a pay scale of PB-2 Rs.930034800 with Grade Pay of Rs.4200/-

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3. This issues with the concurrence of Department of Expenditure vide MoF, DoE I.D. No. 2(4)E.III Desk/2011 dated 3rd June, 2013.

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4. This order shall be deemed to take effect from 18.12.2013.

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Yours faithfully,

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Under Secretary to the Govt. of India."

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W.P.13110/2021

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8. The undisputed facts further reveal that in exercise of the powers conferred under the proviso to Article 309 of the Constitution of India, the Rules were framed for promotion to the post of Executive Assistant known as the Central Excise and Customs Department, Executive Assistant (Group 'B', Non Gezetted post) Recruitment Rules, 2015 and under the said Recruitment Rules, 60% posts were to be filled up by promotion and 40% by direct recruitment through Staff Selection Commission.

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9. The Recruitment Rules of 2015 provided that for the purposes of promotion, the Tax Assistants with 10 years of service in the grade and in addition, those who have passed the departmental examination, were qualified for the promotion. The Rules for filling up of the post of Executive Assistant came into force on 28.9.2015. However, certain promotions under the various Commissionerates took place promoting the Tax Assistants to the post of Executive Assistants in spite of the fact that the Recruitment Rules of 2015 came into play. The petitioner was promoted to the post of Senior Tax Assistant by an order dated 29.6.2017 (though the post was redesignated as Executive Assistant) w.e.f., 1.4.2017.

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10. As large number of employees, who were not fulfilling the qualification for the post of Executive Assistant, were promoted contrary to the Recruitment Rules of 2015, the department took

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W.P.13110/2021

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action in the matter and various letters/executive instructions issued by the various authorities were withdrawn by an order dated 1.7.2019 by the Government of India. The Government of India has passed a detailed order stating that the Chief Commissioners, who have issued the orders for holding Departmental Promotion Committees (DPCs) have issued orders contrary to the Recruitment Rules of 2015 and corrective action has to be taken keeping in view the Recruitment Rules and Department of Personnel and Training (DOPT) guidelines.

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11. The petitioner being aggrieved by the Memorandum issued by the Government of India dated 1.7.2019 has preferred an original application before the Central Administrative Tribunal (hereinafter referred to as the Tribunal) and the Tribunal has dismissed the same. Against the order passed by the Tribunal, the present petition has been filed.

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12. This Court has heard the learned counsel appearing for the parties and perused the record.

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13. The undisputed facts reveal that the petitioner was promoted as Tax Assistant on 21.3.2013. He was promoted to the post of Senior Tax Assistant w.e.f., 1.4.2017. The post of Senior Tax Assistant was redesignated as Executive Assistant by a notification issued by the Government of India dated

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W.P.13110/2021

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28.9.2015 and the Recruitment Rules of 2015 were also framed in the year 2015 itself.

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14. The order of promotion is on record as Annexure-A2 and the same reveals that for the vacancies of the year 2016-17 and 2017-18 the order of promotion has been issued.

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15. Learned counsel for the Union of India has categorically stated before this Court that the vacancies were in respect of 2016, 2017 and 2018 recruitment year and his contention is that by no stretch of imagination the Rules, which were not in existence could have been applied for providing promotion to the post of Executive Assistant and the only Rules, which came into existence in the year 2015 known as the Central Excise and Customs Department, Executive Assistant (Group 'B', Non Gezetted posts) Recruitment Rules, 2015, could have been made applicable.

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16. In the considered opinion of this Court, by the impugned order, which was the subject matter of challenge before the Tribunal, the Government of India has permitted holding of a review DPC and therefore, the Tribunal was justified in dismissing the original application as promotions are required to take place strictly in consonance with the statutory provisions as contained under the Recruitment Rules of 2015.

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W.P.13110/2021

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17. In the present case, the petitioner has been promoted dehors the statutory provisions and therefore, the Government of India was certainly justified in directing holding of the review DPC. However, the review DPC has not been held so far and therefore, there is no order of reversion and the present petition is certainly a premature petition.

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18. Learned counsel for the petitioner has placed heavy reliance upon a judgment delivered by the Hon'ble Supreme Court in the case of Adi Saiva Sivachariyargal Nala Sangam and ors., v. The Government of Tamil Nadu and Ors., reported in (2016) 2 SCC 725. His contention is that in the aforesaid case, the process of appointment, before any appointment was made, was under challenge in respect of a Priest and therefore, he has argued before this Court that in the present case also, the petitioner is entitled to challenge the reversion, which is yet to take place.

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19. In the considered opinion of this Court, the aforesaid judgment does not help the petitioner at all as there is no cause of action at present and the review DPC is yet to be held by the department taking into account the Recruitment Rules of 2015.

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20. Reliance has also been placed upon a judgment delivered in the case of Ashok Kumar Rana v. The Union of India and ors., passed by the

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W.P.13110/2021

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High Court of Manipur at Imphal in W.P.(C) No.710/2014, decided on 24.6.2016. In the aforesaid case, the learned Single Judge was dealing with a case of reversion and the learned Single Judge has arrived at a conclusion that, in case, a person is to be reverted, an opportunity of hearing has to be accorded to him.

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21. In the present case, the stage of reversion has not at all come and the respondents shall certainly follow the principles of natural justice and fair play, in case, the necessity arises for reverting the petitioner and the persons placed like the petitioner in the department.

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22. Reliance has also been placed upon a judgment delivered by the Hon'ble Supreme Court in the case of Vijay Kumar vs. State of Maharashtra and Ors., reported in AIR 1988 SC 2060. The aforesaid case before the Hon'ble Supreme Court was a case of promotion and the Hon'ble Supreme Court was dealing with an issue of non communication of adverse ACRs. However, in the present case, no such contingency is involved. In the present case, a review DPC is yet to be held for considering the case for promotion keeping in view the Recruitment Rules of 2015 and therefore, the aforesaid judgment also does not help the petitioner in any manner and the Tribunal was justified in dismissing the original application.

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W.P.13110/2021

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This Court does not find any reason to interfere with the order passed by the Tribunal.

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Resultantly, the writ petition is dismissed.

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In view of the aforesaid, the other connected writ petitions are also dismissed.

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Pending IAs, if any, stand disposed of.

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