2018 (4) TMI 1603 - HC - Central Excise

Vires of Rule 4 (2) (c) and Rule 13 of the Rajasthan Excise Service (General Branch) Rules, 1974 - challenge to the rules was made without making difference between the cadre post and the post not encadred under the Rules of 1974 but a cadre post in other service - Held that - The perusal of Rule 13 makes it clear that appointment to the senior post and, in the present case, to the post of District Excise Officer is to be made from and amongst the members of service based on merit in accordance to the procedure laid down under Rule 11 (a) of the Rules of 1974 - Rule 13 thereupon provides for appointment of certain other senior posts, not encadred in the service from and amongst the members of Indian Administrative Service and the Rajasthan Excise (Preventive Officers) Service but not exceeding for the period of two years. There exist difference between the cadre post and not encadred in the service. Learned Single Judge has given direction to the Department to determine the cadre post though during the course of arguments, learned counsel for the petitioner himself made a reference of 32 cadre post and 8 posts not encadered. If that is so, determination of cadre post under the Rules exist so the post not encadred - there is no reason to struck down the Rule 4 (2) (c) and Rule 13 of the Rules of 1974. Appeal dismissed.

Summary

Issues:
Challenge to Rule 4 (2) (c) and Rule 13 of the Rajasthan Excise Service (General Branch) Rules, 1974.

Analysis:
The appeal challenged the order dismissing the writ petition against Rule 4 (2) (c) and Rule 13 of the Rules of 1974. The key contention was the distinction between cadre posts and posts not encadred under the Rules of 1974 but considered cadre posts in other services. Rule 13 governs appointments to senior posts, specifying that appointments to encadred senior posts are based on merit and procedure under Rule 11 (a). Additionally, Rule 13 allows appointments to non-encadred senior posts from members of specific services on deputation for up to two years.

The judgment emphasized the difference between cadre posts and those not encadred under the Rules of 1974. It highlighted that a claim cannot be made against a post not encadred, as the appointment procedure is specific. The court upheld the dismissal of the writ petition, stating that encadred senior posts must be filled based on merit and procedure, while non-encadred posts can be filled through deputation from specific service members for a limited period.

The court found no grounds to interfere with the impugned order, agreeing with the Single Judge's decision. It noted the petitioner's reference to both cadre and non-encadred posts, indicating that the cadre post determination exists under the Rules. Consequently, the court upheld Rule 4 (2) (c) and Rule 13 of the Rules of 1974, concurring with the Single Judge's findings. The appeal was ultimately dismissed based on these considerations.