INTER CADRE vs.

INTRA CADRE DISPARITY IN PROMOTIONS

Posted by R.Prabhakar, Vizag

The regional disparity in promotions is existed in our Department since its creation. This regional disparity in promotion is also existed in other departments like Railways, AG, CBDT, Postal etc. The promotions to the post of Supdt are being allowed zone basis on the basis of Supdt. CE RR of 1986. This RR was challenged in high Court of Hyderabad to convert the seniority list from zonal to all India but high court rejected the appeal and accepted the RR as valid one. The decision of high court was challenged in Apex Court but Apex Court accepted the decision of High Court and again directed to determine the seniority as per decision of W.P.CIVILNO 306/88.

The Apex Court's decision in case of All India Federation of Central Excise v. U.O.I (W.P.Civil No 306/88) vide para-7 of the said decision it is inter-alia held that Superintendent of Central Excise are to be placed in their respective seniority( consideration) list on the basis of their continuous length of service in the cadre of Supdt. . In view of the directions of Apex Court in Radhey Shyam v.U.O.I, DOPT has directed that a requisition in the prescribed form is to be placed on the SSC by the appointing authority for selection of candidates on direct recruitment basis. The selected candidates will be appointed by the appointing authority under his jurisdiction only. For all service matters including vigilance and seniority etc. the appointing authority is the deciding authority as per different guidelines. The name of the selected candidates will be taken place as per merit in the seniority list maintained by such appointing authority. Therefore on inter Commissionerate transfer one is losing his seniority as he is being transferred to the jurisdiction of another appointing authority.

The Full Bench of Supreme Court in R.D.Gupta v. U.O.I- 19909(1) ATJ 212 had clarified that if an employee is promoted after DPC has found him fit for promotions that period should be count for seniority. The clarification given by Gupta case is clearly consistent with law laid down by the Apex Court in 1990(2) ATJ35-JT(2) SC 264 between Direct recruit vs. State of Maharashtra. It has been laid down that where an incumbent is appointed to a post according

to the Recruitment Rules his seniority has to be counted from the date of his appointment. Very interestingly para-5 of the sad decision provides that 'if the initial appointment is not made by rules but the appointee continues in the post uninterruptedly, the period of officiating service will be counted for his seniority. The Apex Court in the Judgement of Radheshyam Singh (which is not related to Recruitment Rules or seniority but related to selection by Examination) has clearly stated for prospective amendment of examination provision on or after 01.01.1997. After pronouncement of judgement by Apex Court in Radheshyam case the Board has decided for merger of all three base cadres such as Inspector/PO/Examiner in to one cadre and accordingly one minutes was recorded but very unfortunately none of our Associations pursued for such implementation. The Inspectors Federation raised such issue before CAT, Mumbai in OA 451/2002, the CBEC in counter to said OA stated

that the matter is under active consideration and would be dealt separately. Board accordingly constituted Bharadwaj committee popularly known as merger committee. But Bharadwaj Committee recommended for merger of all three base cadres prospectively w.e.f. 01.01.2006. But at that time our Association did not raise any objection to such recommendation and accepted the same. After a long time one of our office bearers of Mumbai has raised such issue for merger of all three base cadres in AC meeting of our Association during 2011. After such meeting he has sent a mail stating that I say parity not with x y or z, I say we are Group 'B' officers, recruited by passing same exam, we perform all the duties including as C. Ex. Officers, possess the same qualification, Where as our counterpart does not perform the duties as C.E. or Service Tax officers so we are above then them then we should be placed at same place at least if not above where our counter part of same recruitment year reached as of now.

That parity can be achieved with this order as it says just and fair representation and in past also ratio was fixed on same lines. So this will serve the

purpose. And all cadres can join with same demand in agitation as it will help all of us. If by any imagination CBEC says not possible then separate us immediately should be our counter before restructuring with only rider DR IRS only 50% with Central Excise and those who have more background of excise.

I am sure that if we toe this line of action vigorously there is no answer with CBEC how to deny and why they discriminate us all these years. By this we can even achieve unity in all cadres also. However in our AC meeting the issue was discussed and it was resolved that we should raise before Board to allow parity in promotions along with Examiners. Accordingly several representations were submitted by our Association to Board for consideration of the same, since Board did not move one inch on the basis of our representations, an OA bearing no 2323 was filed as per resolution before CAT(PB) with the following prayers:
(a) Pass Order or Direction commanding the Respondents to produce the record of the promotion policy and produce the records in respect of the action taken against Para 3.1 at S. No. 3 (BMB No. 06/2011) of the minutes of the meeting of CBEC held on 12-1-11 as well as presentation DT 18-1-11. (b) Direct the Respondents to Amend/revise the Recruitment Rules to bring all the Inspectors (i.e., Inspectors of Central Excise, Preventive Officers and Examiners of Customs) recruited in a particular year through All India Combined Examination in parity as per their seniority position in respect of their service conditions and promotions to maintain the principal of equal opportunity & equality before law. (c) Direct the Respondents to dispose of all the Representations of the Applicants with speaking order and to save the senior Central Excise officers from humiliation of working under their juniors recruited much after in Customs belonging to the same cadre of Inspector in CBEC. (d) Pass any such other order or orders, as maybe deemed fit and proper. The case was heard on 19.07.12 and notice was issued to the CBEC to file the Counter. In the Counter Board pleaded about existence of regional disparity in promotion as existed on our cadre. In Rejoinder we pleaded for removal of the same duly merging all base cadres

retrospectively. The matter is pending for decision. While the matter is sub-judice, in our last AEC meeting held at Patna , one unit for the first time has raised a point for removal of regional disparity retrospectively and preparation of all India seniority list of Inspectors and the Gr-A RR should be relaxed to allow promotion to the post of AC on the basis of one all India seniority list of Inspector to be prepared by Board duly scrapping all promotions made to the post of Superintendents on the basis of Superintendent of Central Excise Recruitment Rules. A resolution committee was constituted in AEC meeting to adopt resolution on the same, but as majority units wanted time for discussion on such issue, the resolution committee in a note suggested to discuss such issue in our next AEC meeting.
As regards relaxation of Gr-A Recruitment Rules to allow promotions to the posts of Asst. Commissioner on the basis of one imaginary all India seniority list of Inspector; we have made a discussion with DOPT officials recently. The DOPT officials opined

that DOPT vide OM No. AB.14017/48/2010- Estt (RR) dated 31.12.2010 prescribes the guidelines on framing /amendment/relaxation of RR. Part-IV of such OM provides for amendments and Relaxation. In case of Organised Cadre only, a proposal for relaxation can be made out as a result of review of such service if Cabinet has approved to fill up certain posts by promotion from feeder categories. The proposals for relaxation should be made in the formant prescribed under Annexure-IV. The formant duly filled in should be forwarded to DOPT /UPSC along the approved seniority lists prepared on the basis of DOPT guidelines of feeder categories who are to be considered for such relaxation.

Relaxations as a result of cadre review can be considered in case of feeder categories only but this facility cannot be extended to sub feeder categories. No relaxation can be provided with reference to fixation of seniority in feeder categories. Relaxation of RR does not mean relaxation of seniority. It is very unfortunate to state that many of our friends are having an opinion that AIACEGEO is not interested for removal of regional disparity. We want to make it clear that parity is the basic concept of our Constitution, hence AIACEGEO wants parity in promotion. At the cost of repetition we want to clarify that first, all our friends raised in the meeting for one issue that no senior should work under junior and wanted parity with Examiners. Accordingly on the basis of the resolution representations were submitted to Board by AIACEGEO for consideration and

thereafter

an OA was filed in CAT as per resolution , which is at present pending for

decision. If parity with examiner will be settled, automatically the issue of regional disparity will be solved. The regional disparity as existed in the cadre of Superintendent can be settled if the Superintends of Central Excise Recruitment Rules is amended retrospectively with a retrospective provision of preparation of all India seniority list in the cadre of Inspector and with due declaration that all the promotions made to the post of Superintendents till date are illegal and fresh promotions to the cadre of Superintendent on the basis of so called proposed amended RR are to be granted. However the removal of regional disparity or preparation of seniority list in the cadre of Inspector is no way related to CR. For removal of regional disparity or preparation of seniority list as per merit list, a case is required to be filed challenging the Supdt. RR. But some friends have recently advocated that the regional disparity can be removed if the Gr-A RR is being relaxed to allow promotions to the post of AC on the basis of all India seniority list of Inspector duly ignoring the promotions granted to the post of Superintendent. Recently the Solicitor General has given an opinion that Gr-A RR can not be relaxed violating the article 14 of constitution of India. DOPT has clarified that the RR can be relaxed considering the following four issues: (1) The relaxation shall not violate the provisions of Recruitment Rules of feeder categories. (2) The relaxation shall not violate the Guidelines of general principles of fixation of seniority as issued by DOPT from time to time. (3 ) The relaxation shall not violate any decisions of any Court. (4) The relaxation shall not violate the provisions of article 14 & 16 of Constitution of India. As regards point nos.(1) &(2) above- Since promotions to the post of Superintendent are being allowed on the basis of Superintendent of Central Excise Recruitment Rules, the promotions to higher posts must be granted on the basis of seniority list or gradation list prepared as per DOPT guidelines in the cadre of Superintendent only. As regards point (3) The Apex Court has decided to prepare the seniority list in the cadre of Superintendent only to allow promotion to the the post of AC on prescribed ratio. As regards point (4) above- Inspector is one class and Superintendent is another class. Comparison for the purpose of article 14 is required to be made in same class, otherwise the same will be considered treating equal with un equal and that will violate the basic principles of Constitution of India.

Therefore in the present circumstance RR may not be relaxed. Unless the provisions of Supdt RR is set aside by a court of laws with retrospective effect, the regional disparity can not be solved retrospectively. Since AIACEGEO has already filed a case and took a stand as per resolution, it is not possible to withdraw the case and file another petition with a different footings., In the case in the counter, Board has also raised about disparity as existed in Zonal basis, but in rejoinder AIACFEGEO appealed for removal of the same. AIACEGEO is working for the benefits of all including stagnated zone. AIACEGEO is also interested for removal of intra cadre as well as inter cadre disparities. In the case of T.R. Kapur & Ors vs State Of Haryana & Ors on 17 December, 1986 Supl. 584 JT 1986 1092 1986 SCALE (2)1051 CITATOR INFO : F 1987 SC 424 (11) RF 1987 SC1676 (17) R 1988 SC1645 (6) RF 1989 SC 307 (5) D 1990 SC1072 (5) , the Apex court has decided that benefits acquired under existing service rules cannot be taken away by amendment of rules with retrospective effect. Persons appointed or promoted under a valid Recruitment Rules are seniors to officers of feeder categories. Recruitment Rules can not be amended retrospectively to make such officers juniors to officers who promoted or appointed later on. Service laws can not be amended retrospectively. In Sabarwal, Ajit Singh-I, Ajit Sing-II, Virpal Singh Chauhan cases it was decided to amend service laws prospectively only. The

Apex Court in the Judgement

of Radheshyam Singh (which is not related to Recruitment Rules or seniority but related to selection by Examination ) has clearly stated for prospective amendment of examination provision. Para 10 reproduced.
10. The argument advanced by the learned counsel for the respondents that this process of zone-wise selection is in vogue since 1975 and has stood the test of time cannot be accepted for the simple reason that it was never challenged by anybody and was not subjected to judicial scrutiny at all. If on judicial scrutiny it cannot stand the test of reasonableness and constitutionality it cannot be allowed to continue and has to be struck down. But we make it clear that this judgment will have prospective application and whatever selections and appointments have so far been made in accordance with the impugned process of selection shall not be disturbed on the basis of this judgment. But in future no such selection shall be made on the zonal basis. If the Government is keen to make zone-wise selection after allocating some posts for each zone it may make such

scheme or rules or adopt such process of selection which may not clash with the provisions contained in Article 14 and 16 of the Constitution of India having regard to the guidelines laid down by this Court from time to time in various pronouncements. It has already been stated that in the above case, it was decided for the manner to conduct examination for selection on all India basis . This judgement is effective only from the date of pronouncement, it is no way related to Inspectors who joined on or before 31.12. 1996.
0 Comment

DETERMINATION OF SENIORITY IN SERVICE AS PER THE RECENT SURPREME COURT JUDGEMENT

As per the recent decision of Apex Court, the legal position with regard to determination of seniority in service can be summarized as follows :
(i) The

effective date of selection has to be understood in the context of the service rules under

which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be. (ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from the different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. (iii) Ordinarily, notional seniority may not be granted from the back date and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules. (iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even born in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the mean time.

(iv) The Recruitment Rules

A HISTORICAL JUDGEMENT OF HONBLE SUPREME COURT

T.R. Kapur & Ors vs State Of Haryana & Ors on 17 December, 1986

Supl. 584 JT 1986 1092 1986 SCALE (2)1051 CITATOR INFO : F 1987 SC 424 (11) RF 1987 SC1676 (17) R 1988 SC1645 (6) RF 1989 SC 307 (5) D 1990 SC1072 (5) ACT: Benefits acquired under existing service rules cannot be taken away by amendment of rules with retrospective effect. Constitution of India, Article 309, proviso-Service RulesAmendment of with retrospective effectMust satisfy tests of Articles 14 and 16(1). Persons appointed or promoted under a valid Recruitment Rules are seniors to officers of feeder categories. Recruitment Rules can not be amended retrospectively to make such officers juniors to officers who promoted or appointed later on. Service laws can not be amended retrospectively. In Sabarwal, Ajit Singh-I, Ajit Sing-II, Virpal Singh Chauhan cases it was decided to amend service laws prospectively
0 Comment

PRINCIPLES FOR DETERMINING SENIORITY: SUPREME COURT

Revisiting its earlier decisions, the Supreme Court in a recent decision [Pawan Pratap Singh & Ors. v. Reevan Singh & Ors.] has formulated the legal principles for determining seniority of Government servants. The Court was dealing with the question relating "to determination of seniority between two groups of direct recruits to the posts of Deputy Jailor (Group C post), one appointed in 1991 through the selection made by Uttar Pradesh Subordinate Services Selection Commission and the other in 1994 by Uttar Pradesh Public Service Commission".

The Court revisited the law to cull out the principles in the following terms; 20. It is now appropriate to consider the authorities cited at the Bar and a couple of other decisions. In Rafiquddin, this Court in the context of U.P. Civil Service (Judicial Branch) Rules, 1951 made general observations that seniority in the service is determined on the basis of the year of the competitive examination irrespective of the date of appointment and inter se seniority of candidates recruited to the service is determined on the basis of their ranking in the merit list.

21. In A.P. Public Service Commission, this Court was concerned with the Andhra Pradesh Police Service Rules, 1966. While dealing with the word selection in rule 5(A)(i) of the said Rules, this Court observed as follows : If the word selection is understood in a sense meaning thereby only the final act of selecting candidates with preparation of the list for appointment, then the conclusion of the Tribunal may not be unjustified. But round phrases cannot give square answers. Before accepting that meaning, we must see the consequences, anomalies and uncertainties that it may lead to. The Tribunal in fact does not dispute that the process of selection begins with the issuance of advertisement and ends with the preparation of select list for appointment. Indeed, it consists of various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations, calling for interview or viva voce and preparation of list of successful candidates for appointment. Rule 3 of the Rules of Procedure of the Public Service Commission is also indicative of all these steps. When such are the different steps in the process of selection, the minimum or maximum age for suitability of a candidate for appointment cannot be allowed to depend upon any fluctuating or uncertain date. If the final stage of selection is delayed and more often it happens for various reasons, the candidates who are eligible on the date of application may find themselves eliminated at the final stage for no fault of theirs. The date to attain the minimum or maximum age must, therefore, be specific, and determinate as on a particular date for candidates to apply and for recruiting agency to scrutinise applications. It would be, therefore, unreasonable to construe the word selection only as the factum of preparation of the select list. Nothing so bad would have been intended by the rule making authority. Pertinently, the aforesaid observations of this Court with regard to the word selection are in the context of the age eligibility as the provision under consideration read, has completed the age of 21 years and had not completed the age of 26 years on the first day of July of the year in which the selection is made. The aforesaid observations, therefore, have to be read in the context of the provision under consideration before this Court. 22. In Ram Janam Singh v. State of U.P. and Anr. , this Court reiterated that the date of entry into a service is the safest rule to follow while determining the inter se seniority between one officer or the other or between one group of officers and the other recruited from the different sources. It was observed that this is consistent with the requirement of Articles 14 and 16 of the Constitution. It was, however, observed that if the circumstances so require, a group of persons can be treated a class separate from the rest for any preferential or beneficial treatment while fixing their seniority, but, normally such classification should be by statutory rule or rules framed under Article 309. 23. A two-Judge Bench of this Court in Jagdish Ch. Patnaik, while construing the word recruited occurring in Orissa Service of Engineers Rules, 1941, held that a direct recruit is recruited when formal appointment order is issued and not when recruitment process is initiated. This is what this Court said : 34. The only other contention which requires consideration is the one raised by Mr Raju Ramachandran, learned Senior Counsel appearing for the intervenors, to the effect that the expressions recruitment and

appointment have two different concepts in the service jurisprudence and, therefore, when Rule 26 uses the expression recruited it must be a stage earlier to the issuance of appointment letter and logically should mean when the selection process started and that appears to be the intendment of the rulemakers in Rule 26. We are, however, not persuaded to accept this contention since under the scheme of Rules a person can be said to be recruited into service only on being appointed to the rank of Assistant Engineer, as would appear from Rule 5 and Rule 6. Then again in case of direct recruits though the process of recruitment starts when the Public Service Commission invites applications under Rule 10 but until and unless the Government makes the final selection under Rule 15 and issues appropriate orders after the selected candidates are examined by the Medical Board, it cannot be said that a person has been recruited to the service. That being the position it is difficult for us to hold that in the seniority rule the expression recruited should be interpreted to mean when the selection process really started. That apart the said expression recruited applies not only to the direct recruits but also to the promotees. In case of direct recruits the process of recruitment starts with the invitation of application by the Commission and in case of promotees it starts with the nomination made by the Chief Engineer under Rule 16. But both in the case of direct recruits as well as in the case of promotees the final selection vests with the State Government under Rules 15 and 18 respectively and until such final selection is made and appropriate orders passed thereon no person can be said to have been recruited to the service. In this view of the matter the only appropriate and logical construction that can be made of Rule 26 is the date of the order under which the persons are appointed to the post of Assistant Engineer, is the crucial date for determination of seniority under the said Rule 24. While dealing with the dispute relating to inter se seniority of Munsifsone set of Munsif recruited on the basis of 15th examination held by the Public Service Commission under the Bihar Judicial Service (Recruitment) Rules, 1955 and another set of Munsifs appointed under the Bihar Civil Service (Judicial Branch) Ad hoc Recruitment Rules, 1974, in Surendra Narain Singh, this Court held that candidates recruited against earlier vacancies shall rank senior to those recruited against the later vacancies. 25. In Ajit Kumar Rath, this Court followed Jagdish Ch. Patnaik and did not accept the contention that those who were appointed against the vacancies of the earlier years although, appointed later in point of time, must rank senior to the appointees of the vacancies of the subsequent years though appointed in prior point of time. 26. This Court emphasized in the case of Uttaranchal Forest Rangers Association that no retrospective promotion can be granted nor any seniority can be given on retrospective basis from a date when an employee has not even born in the cadre. In this regard, the Court relied upon earlier decisions of this Court in State of Bihar & Ors. v. Akhouri Sachindra Nath & Ors. and Jagdish Ch. Patnaik. 27. In the case of Dinesh Kumar Sharma, this Court was concerned with U.P. Agriculture Group B Service Rules, 1995 and the 1991 Rules. With reference to rule 8 of the 1991 Rules, this Court held that seniority cannot be reckoned from the date of occurrence of the vacancy and should be reckoned only

from the date of substantive appointment to the vacant post under the Rules and not retrospectively from the date of occurrence of vacancy. 28. The dispute in Balwant Singh Narwal related to seniority of the Principals, some of whom were appointed between 1995 and 2000 and others on May 26, 2000. The Principals who were appointed on May 26, 2000 were given seniority with retrospective effect from June 2, 1994. This Court while relying upon a decision in Surendra Narain Singh8 held as under : 9. There is no dispute about these general principles. But the question here is in regard to seniority of Respondents 4 to 16 selected on 1-10-1993 against certain vacancies of 1992-1993 who were not appointed due to litigation, and those who were selected against subsequent vacancies. All others from the same merit list declared on 1-10-1993 were appointed on 2-6-1994. Considering a similar situation, this Court, in Surendra Narain Singh v. State of Bihar held that candidates who were selected against earlier vacancies but who could not be appointed along with others of the same batch due to certain technical difficulties, when appointed subsequently, will have to be placed above those who were appointed against subsequent vacancies. 29. The Constitution Bench of this Court in Direct Recruit Class II Engineering Officers Association v. State of Maharashtra & Ors. stated the legal position with regard to inter se seniority of direct recruits and promotees and while doing so, inter alia, it was stated that once an incumbent is appointed to a post according to rules, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. 30. From the above, the legal position with regard to determination of seniority in service can be summarized as follows : (i) The effective date of selection has to be understood in the context of the service rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be. (ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from the different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. (iii) Ordinarily, notional seniority may not be granted from the back date and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules. (iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even born in

the cadre and by doing so it may adversely affect the employees who have been appointed validly in the mean time.

SOURCE: HYDEXCUST.ORG