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TMI Blog2015 (4) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... l constitution of the cadre of Data Entry Operators, was made out of the original ministerial cadre. The posts under the 1992 Rules, had a different nomenclature, vis-àvis the posts in the ministerial cadre. Their duties and responsibilities were separate and distinct, from that of the ministerial cadre. So were their avenues of promotion. The lowest post in the cadre of Data Entry Operators was designated as Data Entry Operator Grade ‘A’. Onward promotion was to the post of Data Entry Operator Grade ‘B’, and thereafter, to Data Entry Operator Grade ‘C’, and finally, to Data Entry Operator Grade ‘D’. In the above view of the matter, it is not possible for us to accept, that the creation of the cadre of Data Entry Operators, can be described as a mere bifurcation of the original cadre. In the present controversy, it is not possible to conclude, that the original position was ever restored. Consequent upon the promulgation of the TA Rules, 2003 and the STA Rules, 2003, the amalgamation resulted in appointments to the cadres of Tax Assistants and Senior Tax Assistants. Neither of the parties concerned, held either of these posts prior to the promulgation of the abovementioned rules. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught to be treated as superior to the other. The first contention, premised on Rule 4 of the TA Rules, 2003 and Rule 5 of the STA Rules, 2003, respectively, is devoid of any merit, and is accordingly hereby rejected. - The resultant inter se seniority between the posts at the initial constitution of the cadres under reference, was also based exclusively on the pay-scales of the posts sought to be merged. Cadre of Data Entry Operators, was created out of the original ministerial cadre. It is, therefore apparent, that the members of the two cadres were originally discharging similar duties. It is only as a consequence of the administrative decision to computerize the functioning of the Customs and Central Excise Department, that a separate cadre of Data Entry Operators came to be created. The newly created cadre, exclusively functioned towards giving effect to the decision to computerize the functioning of the department. There was thereafter a division of duties discharged by the original members of the ministerial cadre. One cadre of employees exclusively thereafter discharged procedural duties of the department, whereas, the other cadre of employees exclusively thereafter discharg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have been fully implemented in or around 2002-03. Consequent upon achievement of the above objective, the separate cadre so created, was sought to be re-amalgamated with the existing ministerial cadre. The above noticed bifurcation and re-amalgamation, resulted in a coincidental career advancement, for those who had accepted to break away from the original ministerial cadre. Some of those who were originally placed at inferior positions in the seniority list of the original ministerial cadre, acquired superiority over their counterparts (in the original ministerial cadre), consequent upon their promotion within the cadre of data entry operators, which resulted in their acquiring a higher position in seniority, over and above those who were senior to them in the original ministerial cadre. Before embarking upon the niceties of the seniority dispute, it is imperative to delve upon the reasons of the afore-stated bifurcation, and reamalgamation of cadres. The instant aspect of the matter is accordingly being dealt with, in the following paragraphs. 2. The ministerial cadre as it originally existed, comprised of posts of Deputy Office Superintendents (Levels 1 and 2), Upper Divisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned for Data Entry Operator-B, training of operators, scheduling of jobs and more skill-based validation of alphanumeric or graphic data as determined by the needs of the organization. 4. Data Entry Operator-D: In addition to those jobs mentioned for Data Entry Operator-C, programming relating to data preparation and/or validation, and for a few staff who are considered to have the required aptitude and depending upon the need, supervision of the work of Data Entry Operator-A, B and C. 5. Data Entry Operator-E: Supervision of the work of data preparation, scheduling and distribution of jobs among other Data Entry Operators, planning, scheduling, coordination and implementation of interrelated and integrated data preparation jobs, programming relating to data preparation and/or validation traction and if necessary to do supporting job of data entry, verification, validation etc. depending on exigencies of work." 4. In order to implement the recommendations made by the Fourth Central Pay Commission, the Central Board of Excise & Customs, Department of Revenue, Ministry of Finance, framed the Electronic Data Processing Posts (Group 'C' Technical Posts) Recruitment Rules, 1992 (h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Entry Operator Grade 'B', the schedule stipulated 6 years' regular service as Data Entry Operator Grade 'A'. The post of Data Entry Operator Grade 'B' was liable to be filled exclusively by promotion, failing which, on transfer by deputation. Onward promotion from the post of Data Entry Operator Grade 'B', was to the post of Data Entry Operator Grade 'C'. The said promotional post, was in the pay scale of ₹ 1400-40-1800-EB-50-2300. Data Entry Operators Grade 'B' with 3 years' regular service in the grade, were considered eligible for promotion to the post of Data Entry Operator Grade 'C'. The schedule appended to the 1992 Rules provided, that the post of Data Entry Operator Grade 'C' would be filled up exclusively by promotion, failing which, on transfer by deputation. The highest post under the 1992 Rules, was the post of Data Entry Operator Grade 'D'. The said post was to be filled up by promotion from amongst Data Entry Operators Grade 'C', with 4 years' regular service in the grade. The post of Data Entry Operator Grade 'D', was earmarked the pay scale of ₹ 1600-50-2300-EB-60-2660. Just as in other cases referred to hereinabove, promotion to the post of Data Entry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r on the ministerial side, on account of better promotion avenues available to the ministerial cadre. In order to resolve the distinction in the two cadres of employees, the Central Board of Excise & Customs invited suggestions from all the Commisionerates for the re-merger of cadres. The matter was examined also in the light of the fact that the purpose for which the cadre of Data Entry Operators was created, had been achieved. The deliberations lead to restructure/re-amalgamation, by abolishing the cadre of Data Entry Operators. To give effect to the executive determination the President of India, in exercise of the powers conferred on him by the proviso to Article 309 of the Constitution of India, framed two sets of rules for the Customs and Excise Department, namely, the Central Excise and Customs Department Tax Assistant (Group 'C' Post) Recruitment Rules, 2003 (hereinafter referred to as, the TA Rules, 2003) and the Central Excise and Customs Department Senior Tax Assistant (Group 'C' Post) Recruitment Rules, 2003 (hereinafter referred to as, the STA Rules, 2003). In order to understand the re-merger/re-amalgamation of the cadres in the Customs and Excise Department, it is im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In addition to the above, Lower Division Clerks falling within the seniority list, as determined by the appointing authority at the commencement of the TA Rules, 2003, on passing the departmental computer proficiency examination, would be deemed to be promoted as Tax Assistants (from the date of passing such examination). Rule 4 of the TA Rules, 2003 expressly postulates, that Upper Division Clerks and Data Entry Operators Grade 'A', would be placed enblock senior to others appointed as Tax Assistants, and further, that their inter-se seniority would be determined from the date of their regular appointment to the respective grade. For their inter-se placement, Rule 4 of the TA Rules, 2003 further postulated, that Lower Division Clerks would be placed below the Upper Division Clerks and Data Entry Operators Grade 'A'. A perusal of Rule 4 of the TA Rules, 2003 reveals an amalgamation of three posts, namely, Upper Division Clerk, Data Entry Operator Grade 'A' and Lower Division Clerk. All these posts were amalgamated into a freshly created cadre of Tax Assistants under the TA Rules, 2003. 10. While deliberating on the TA Rules, 2003, it is also imperative to notice, that Rule 5 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the date from which they had actually been appointed to these grades on regular basis subject to the condition that their inter-se placement in their respective category shall not be altered. (iii) The Data Entry Operator Grade 'B' (4500-7000) and Tax Assistants (4500-7000) have been placed in their higher scale of 5000-8000 and they shall be placed below the Assistant and Data Entry Operator Grade 'C' 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 respective category shall not be disturbed. (iv) Upper Division Clerk with special pay shall be placed below Assistant; Data Entry Operator Grade 'C', Data Entry Operator Grade 'B', Tax Assistants. (v) The present employees would be required to pass the required or suitable departmental examination, as specified by the Competent Authority, from time to time, in Computer application and relevant procedures within two years failing which they would not be eligible for further increments." A perusal of Rule 5 of the STA Rules, 2003 reveals, that at the initial constitution of the cadre the posts of Assis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld determine their inter-se seniority in the cadre of Senior Tax Assistants. (iii) For exactly the same reasons as have been indicated in (i) and (ii) above, namely, the pay scale in which the respective posts were placed prior to the creation of the cadre of Senior Tax Assistants under the STA Rules, 2003, the posts of Upper Division Clerk were placed at the bottom of the cadre of Senior Tax Assistants, at the initial constitution of the said cadre, under the mandate of Rule 5(iv) of the STA Rules, 2003. 12. It is imperative to point out here, that the erstwhile ministerial cadre was primarily engaged in discharging duties of a procedural nature, whereas those engaged in the cadre of Data Entry Operators were considered to be primarily engaged in discharging duties in the field of computer applications. It is, therefore, that Rule 5(v) of the STA Rules, 2003 provided, that all employees appointed as Senior Tax Assistants, at the initial constitution of the aforesaid cadre, under the STA Rules, 2003, would be required to pass departmental examinations, so as to achieve the proficiency required in discharging duties relating to the application of relevant procedures, as also, wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve Tribunal referred to in the foregoing paragraph were assailed through Writ Petition Nos. 8361, 8388, 17208, 17257, 21692 to 21694, 29468, 34708, 38622 of 2004 and Writ Petition Nos. 2723, 3302 and 8606 of 2005. They were also assailed through Writ Petition MP Nos. 9866, 20444, 20497, 26220, 26221, 35789, 35791, 41879, 46155 of 2004; 12236 and 9286 of 2005; 17258 and 17508 of 2006; and WPMP No. 864 of 2004. The instant challenge was raised at the hands of the Union of India, as also, the members of the cadre of Data Entry Operators, who were merged into the cadre of Tax Assistants and Senior Tax Assistants, consequent upon the promulgation of the TA Rules, 2003 and STA Rules, 2003. All the above mentioned writ petitions were disposed of by the High Court of Judicature at Madras (hereinafter referred to as, the High Court) by a common judgment and order dated 13.4.2007. While adjudicating upon the aforesaid controversy, the High Court, in paragraph 24 of the impugned judgment and order dated 13.4.2007, framed the questions arising for determination. Paragraph 24 is being extracted hereunder:- "24. The contesting respondents have not challenged the entire rules relating to the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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." Thereupon, the High Court considered the controversy in the following perspective:- "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 Test, 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. xxx xxx xxx xxx 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 En ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , remained uppermost in the mind of the High Court, while recording its final conclusion in paragraph 46 as under:- "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 analyzed 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." 16. The challenge to the impugned orders passed by the Administrative Tribunal, and affirmed by the High Court, will need an evaluation at our hands, in the background of the consideration applied in the adjudication of the controversy. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are borne on a common seniority list, when because of trifurcation re-amalgamation all are brought back on the common seniority list, their position ante must be reflected in the seniority list. Original seniority it is said must prevail otherwise any other view would be denial of equality of opportunity in the matter of public employment guaranteed under Article 16 of the Constitution. Accordingly the appellants challenged the seniority list in Writ Petition 1415 of 1983 in the High Court of Judicature at Allahabad. A Division Bench of the High Court by a short cryptic order rejected the writ petition observing that the Court did not find any merit in the writ petition. Hence this appeal by special leave. 3. The appellants have an iron-clad case. The facts, not disputed, to summarise briefly are that under the Divisional Electrical Engineer there were three separate departments under his administrative control. Members of the staff of the three departments were borne on a common seniority list. In other words they were deemed to belong to one office in the matter of seniority and promotion. This is not only not disputed but the averment to that effect in para 6 of the petition h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of selection or denied promotion on the ground of unsuitability. In such a situation status quo ante has to be restored. Obviously Respondents 3 to 6 will be below the appellants and any other view to the contrary would be violative of Article 16 as it would constitute denial of equality in the matter of promotion. Therefore, the seniority list drawn up on a principle contrary to what is discussed herein would be bad in law and deserves to be quashed." A perusal of the above judgment reveals, that there were three independent divisions, under a singular control, namely, (1) Divisional Electrical Engineers, Jhansi, (2) Office of the Assistant Electrical Engineers (Workshop), Jhansi, and (3) Office of the Assistant Electrical Engineer, Jabalpur. These three divisions had separate offices. The clerical staff of the said departments, namely, clerks, senior clerks, head clerks and chief clerks, were borne on a common seniority list till 31.8.1956. From 1.9.1956 onwards, these three divisions/departments, earlier under the singular control of the Divisional Electrical Engineer, Jhansi, were separated from each other (consequent upon the introduction of divisionalization, in the railwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s apparent from the factual narration recorded hereinabove, that the ministerial cadre as it originally existed, comprised of posts of Deputy Office Superintendent (Levels 1 and 2), Upper Division Clerk, Lower Division Clerk, Stenographer (Senior Grade and Ordinary Grade), Draftsman etc. Consequent upon promulgation of the Electronic Data Processing Posts (Group 'C' Technical Posts) Recruitment Rules, 1992, a separate cadre of Data Entry Operators came to be created. Appointment thereto, at the time of initial constitution of the cadre of Data Entry Operators, was made out of the original ministerial cadre. The posts under the 1992 Rules, had a different nomenclature, vis-àvis the posts in the ministerial cadre. Their duties and responsibilities were separate and distinct, from that of the ministerial cadre. So were their avenues of promotion. The lowest post in the cadre of Data Entry Operators was designated as Data Entry Operator Grade 'A'. Onward promotion was to the post of Data Entry Operator Grade 'B', and thereafter, to Data Entry Operator Grade 'C', and finally, to Data Entry Operator Grade 'D'. In the above view of the matter, it is not possible for us to accept, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter proficiency examination, under Rules 4(2) and 4(3) of the TA Rules, 2003 and under Rule 5(v) of the STA Rules, 2003. The above departmental examinations would render them suitable to discharge the duties of the posts of Tax Assistants and Senior Tax Assistants respectively. It is therefore apparent, that on the amalgamation of the pre-existing cadres, they would be required to discharge additional duties of a different nature, for which their proficiency was being ensured through the prescribed departmental examinations. It is, therefore, not possible for us to conclude, that the TA Rules, 2003 and the STA Rules, 2003 had the effect of re-amalgamation of the ministerial cadre and the cadre of Data Entry Operators, so as to restore the position which existed, before the creation of the cadre of Date Entry Operators. 21. At the cost of repetition we wish to reiterate, that the factual scenario which emerges for determination in the present controversy, is not akin to that which had arisen for consideration before this Court in Om Prakash Sharma's case (supra). Therein, the original cadre which comprised of the posts of clerks, senior clerks, head clerks and chief clerk, was trif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of meritcum- seniority principle. It was, therefore, nothing but a mere chance of promotion. In consequence of the impugned orders of reversion, all that happened is that some of the STIs, who had wrongly been promoted as STOs Grade III had to be reverted and thereby lost a few places. In contrast, the conditions of service of ASTOs from Madhya Pradesh and Hyderabad, at least so far as one stage of promotion above the one held by them before the reorganisation of States, could not be altered without the previous sanction of the Central Government as laid down in the Proviso to sub-section (7) of Section 115 of the Act." (ii) Reference may also be made to the decision of this Court in Palaru Ramkrishnaiah & Ors. v. Union of India & Anr., (1989) 2 SCC 541, wherein a three Judge Bench of this Court held as under:- "12. In the case of Ramchandra Shankar Deodhar, (1974) 1 SCC 317, the petitioners and other allocated Tahsildars from ex-Hyderabad State had under the notification of the Raj Pramukh dated September 15, 1955 all the vacancies in the posts of Deputy Collector in the ex-Hyderabad State available to them for promotion but under subsequent rules of July 30, 1959, 50 per cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. It cannot be disputed that the Director General of Ordnance Factories who had issued the Circular dated November 6, 1962 had the power to issue the subsequent Circular dated January 20, 1966 also. In view of the legal position pointed out above the aforesaid circular could not be treated to be one affecting adversely any condition of service of the Supervisors 'A'. Its only effect was that the chance of promotion which had been accelerated by the Circular November 6, 1962 was deferred and made dependent on selection according to the Rules. Apparently, after the coming into force of the order dated December 28, 1965 and the Circular dated January 20, 1966 promotions could not be made just on completion of two years' satisfactory service under the earlier Circular dated November 6, 1962 the same having been superseded by the later circular. It is further obvious that in this view of the matter Supervisors 'A' who had been promoted before the coming into force of the order dated December 28, 1965 and the Circular dated January 20, 1966 stood in a class separate from those whose promotions were to be made thereafter. The fact that some Supervisors 'A' had been promoted before the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court elaborated the subject and the above view was taken. The ratio therein does not have any bearing on the point in issue. Perhaps the question may bear relevance, if an employee was initially recruited into the service according to the rules and promotion was regulated in the same rules to higher echelons of service. In that arena promotion may be considered to be a condition of service. In A.K. Bhatnagar v. Union of India, (1991) 1 SCC 544, this Court held that seniority is an incidence of service and where the service rules prescribe the method of its computation it is squarely governed by such rules. In their absence ordinarily the length of service is taken into account. In that case the direct recruits were made senior to the recruits by regularisation although the appellants were appointed earlier in point of time and uninterruptedly remained in service as temporary appointees along with the appellants but later on when recruited by direct recruitment, they were held senior to the promotees. 31. No employee has a right to promotion but he has only the right to be considered for promotion according to rules. Chances of promotion are not conditions of service and are defea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Services. Reservation and roster were conditions of recruitment and seniority was only an incidence of service. The eligibility for recruitment to the Indian Police Service, thus, is a condition of recruitment and not a condition of service. Accordingly we hold that seniority, though, normally an incidence of service, Seniority Rules, Recruitment Rules and Promotion Regulations form part of the conditions of recruitment to the Indian Police Service by promotion, which should be strictly complied with before becoming eligible for consideration for promotion and are not relaxable." (iv) More recent in time, is the judgment rendered by another three Judge Division Bench in S.S. Bola & Ors. v. B.D. Sardana & Ors., (1997) 8 SCC 522. The majority opinion in the above judgment was rendered by Justice K. Ramaswamy. In the process of consideration, he observed as under:- "145. It is true that the Rules made under the proviso to Article 309 of the Constitution can be issued by amending or altering the Rules with retrospectivity as consistently held by this Court in a catena of decisions, viz., B.S. Vadera v. Union of India, AIR 1969 SC 118; Raj Kumar v. Union of India, (1975) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e/provision in an Act merely affecting the chances of promotion would not be regarded as varying the conditions of service. The chances of promotion are not conditions of service. A rule which merely affects the chances of promotion does not amount to change in the conditions of service. However, once a declaration of law, on the basis of existing rules, is made by a constitutional court and a mandamus is issued or direction given for its enforcement by preparing the seniority list, operation of the declaration of law and the mandamus and directions issued by the Court is the result of the declaration of law but not the operation of the rules per se." Justice S. Saghir Ahmad concurred with the view expressed by Justice K. Ramaswamy. A dissenting view was recorded by Justice G.B. Pattanaik. On the subject in hand, however, there was no dissent. The conclusions recorded by Justice G.B. Pattanaik were to the following effect:- "199. To the said effect the judgment of this Court in the case of State of Punjab v. Kishan Das, (1971) 1 SCC 319, wherein this Court observed an order forfeiting the past service which has earned a government servant increments in the post or rank he holds, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility to be considered for promotion still remained and hence, there was no change in their conditions of service." xxx xxx xxx 212. So far as the rules dealing with Irrigation Branch are concerned, the said rules namely the Punjab Service of Engineers (Irrigation Branch) Class I Service Rules, 1964 have not been considered earlier by this Court at any point of time. One Shri M.L. Gupta was appointed to the post of Assistant Executive Engineer as a direct recruit on 27-8-1971, pursuant to the result of a competitive examination held by the Haryana Public Service Commission in December 1970. The said Shri Gupta was promoted to the post of Executive Engineer on 17-9- 1976. He made a representation to the State Government to fix up his seniority in accordance with the service rules but as the said representation was not disposed of for more than three years he approached the High Court of Punjab and Haryana by filing CWP No. 4335 of 1984. That petition was disposed of by the High Court on the undertaking given by the State that the seniority will be fixed up soon. The said undertaking not having been complied with, the said Shri Gupta approached the High Court in January 1986 by fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce was promulgated on 13-5-1985 as Ordinance No. 6 of 1995 and the said Ordinance was replaced by the impugned Act 20 of 1995 by the Haryana Legislature. The validity of the Act was challenged by the said Shri Gupta and pursuant to the order of this Court the said writ petition having been transferred to this Court has been registered as TC No. 40 of 1996. So far as the validity of the Act is concerned, the question of any usurpation of judicial power by the legislature does not arise in relation to the Irrigation Branch inasmuch as the Recruitment Rules of 1964 framed by the Governor of Punjab in exercise of power under proviso to Article 309 of the Constitution which has been adapted by the State of Haryana on and from the date Haryana was made a separate State had not been considered by this Court nor has any direction been issued by this Court. The legislative competence of the State Legislature to enact the Act had also not been assailed and in our view rightly since the State Legislature has the powers under Entry 41 of List II of the Seventh Schedule to frame law governing the conditions of service of the employees of the State Government. That apart Article 309 itself stipu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally changes the applicant's prospects of promotion. What is ignored is that the promotions already granted to the respondent have not been taken away. Insofar as future chances of promotions are concerned, no vested right accrues as chance of promotion is not a condition of service. Therefore, in the first instance, the Tribunal will have to spell out as to what was the vested right which had already accrued to the respondent and that is taken away by the Policy decision dated 23-4-2010. In this process, other thing which becomes relevant is to consider that once the respondent is permanently seconded in DGQA and he is allowed to remain there, can there be a change in his service conditions vis-à-vis others who are his counterparts in DGQA, but whose permanent secondment is not in cloud? To put it otherwise, the sole reason for issuing Government Policy dated 23-4-2010 was to take care of those cases where permanent secondment to DGQA was wrongly given. As per the appellants, since the respondent had suffered final supersession, he was not entitled to be seconded permanently to DGQA. This is disputed by the respondent. That aspect will have to be decided first. That apart, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Tax Assistants under Rule 4 of the TA Rules, 2003 and Rule 5 of the STA Rules, 2003, respectively, is acceptable in law. It is not the case of the appellants, that any perversity or malafides are involved in the above determination, it is however the pointed submission of the appellants, that the same is arbitrary and discriminatory. And therefore, violative of the provisions of Articles 14 and 16 of the Constitution of India. In this behalf, the submission advanced on their behalf was two-fold. Firstly, that dissimilar posts had been equated. And secondly, that the equation of posts determined merely on the pay-scales attached to them, would not be acceptable in law. 26. Insofar as the former of the said two contentions is concerned, the submission was again two-fold. Firstly, reliance had been placed on Rule 4 of the TA Rules, 2003. Under Rule 4(1) thereof, Upper Division Clerks and Data Entry Operators Grade 'A' had been equated with one another, and members belonging to the aforesaid two cadres had been given the highest position in the seniority list (at the stage of the initial constitution). The inter se seniority amongst the Upper Division Clerks and Data Entry Operator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mputer proficiency examination. It was further submitted, that only from the date of passing the above examination, the person concerned would be deemed to have been promoted as Tax Assistant. It was the pointed contention of learned counsel, that whilst the deficiency in Data Entry Operators Grade 'A', was with reference to lack of knowledge of relevant procedures, the deficiency in members of the ministerial cadre was on account of lack of knowledge relating to computer applications. 28. Learned senior counsel representing the Union of India painstakingly pointed out, that the ministerial cadre as it was originally constituted, handled all procedures manually. Consequent upon a policy decision having been taken, it was decided to computerize the functioning of the Customs and Central Excise Department. This resulted in the promulgation of the Electronic Data Processing Posts (Group 'C' Technical Posts) Recruitment Rules, 1992. The creation of the cadre of Data Entry Operators was considered to be imperative, to give effect to the aforesaid administrative determination, to computerize the functioning of the Customs and Central Excise Department. According to the learned senior co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even with reference to erstwhile members of the ministerial cadre. The erstwhile members of the ministerial cadre, it was pointed out, were required to qualify a departmental examination on the subject of computer applications, within two years, failing which they too would not be eligible for any further increment. 30. Learned senior counsel representing the Union of India, reiterated the factual and legal position, as he had highlighted with reference to Rule 4 of the TA Rules, 2003, whilst interpreting Rule 5 of the STA Rules, 2003. Yet again it was pointed out, that on the completion of the computerization process, there were deficiencies in ministerial cadre, as also, in the cadre of Data Entry Operators, and therefore, at the initial constitution of the cadre of Senior Tax Assistants, the deficiencies in both the cadres were sought to be satisfied, by providing for different departmental examinations for them. It was the contention of the learned senior counsel representing the Union of India, that the submission of learned counsel, pointing out deficiency in only one of the cadres, namely, the cadre of Data Entry Operators, was wholly unjustified and unacceptable. 31. Hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istant Sales Tax Officers (from the former States of Madhya Pradesh and Hyderabad) and Sales Tax Inspectors (from the former State of Bombay), who were allocated to the new State of Bombay. The question which arose for consideration, also had a bearing on the right to promotion to the next higher post of Sales Tax Officer. This Court while determining the above controversy, held as under:- "9. Prior to the reorganisation of the States, a conference of the Chief Secretaries of the States that were to be affected by the reorganisation was held at Delhi on May 18 and 19, 1956 for the purpose of the formulation of the principles upon which integration of services was to be effected. The Government of India by their letter dated April 3, 1957 informed the State Government that the work of integration of services should be dealt with by them in the light of the general principles already settled at the Chief Secretaries Conference. This has been construed to be a valid delegation of powers to prepare the preliminary and final gradation lists under the direction and with the sanction of the Central Government. The Government of India by its circular dated May 11, 1957 to all the State Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right or wrong. This was a matter exclusively within the province of the Central Government. Perhaps, the only question the court can enquire into is whether the four principles agreed upon at the Chief Secretaries Conference had been properly taken into account. This is the narrow and limited field within which the supervisory jurisdiction of the Court can operate. But where, as here, in the matter of equation of posts, the Central Government had properly taken into account all the four principles decided upon at the Chief Secretaries Conference, the decision cannot be assailed at all. In the present case, not only the Central Government had laid down the principles for integration, but also considered the representations and passed the final orders and the provisional gradation lists were prepared and published by the State Government under the direction and with the sanction of the Central Government. 12. In accordance with the principles settled at the Chief Secretaries Conference, the Government of India, in consultation with the Central Advisory Committee, directed that the posts of ASTOs in the former States of Madhya Pradesh and Hyderabad should be continued in an isolate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e seniority of ASTOs from Madhya Pradesh and Hyderabad be fixed on the basis of their continuous service as ASTOs in their respective States." Having dealt with the controversy on the parameters recorded through the aforesaid observations, this Court concluded as under:- "19. Be that as it may, the fact remains that the condition regarding the passing of the departmental examination became incapable of compliance in the case of ASTOs from Madhya Pradesh and Hyderabad who had been promoted as STOs Grade III. They were entitled to such promotion without passing such examination. Under the relevant rules which regulated their conditions of service, there was only a possibility of reversion in the eventuality of their not passing the examination within the stipulated time. Since no examinations admittedly have been held, there is no question of their reversion as ASTOs. If the decision of the High Court were to be upheld, it would imply that many of the ASTOs from Madhya Pradesh and Hyderabad who had been promoted as STOs Grade III and during the past 20 years have reached the higher echelons of service, would now have to be put back as ASTOs, for no fault of their own. Many of them e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng taken into consideration the decision in the Chandrakant Anant Kulkarni's case (supra), concluded as under:- "14. The Cadre Review Committee after examining the kinds of duties discharged by these officers decided that since they all worked in the area of labour welfare, it would be desirable that they could widen their experience. This would be possible if the cadres were integrated and the posts were made interchangeable so that the members of the cadre could get a more varied experience in different areas of labour welfare, thus making for a better-equipped cadre. Therefore, although the exact nature of work done by the three cadres was different, it would be difficult to say that one cadre was superior or inferior to the other cadre or service. 15. A decision to merge such cadres is essentially a matter of policy. Since the three cadres carried the same pay scale at the relevant time, merging of the three cadres cannot be said to have caused any prejudice to the members of any of the cadres. The total number of posts were also increased proportionately when the merger took place so that the percentage of posts available on promotion was not in any manner adversely affected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s essentially a policy decision. This Court in Union of India v. S.L. Dutta, (1991) 1 SCC 505, examined this contention. In S.L. Dutta case a change in the promotional policy was challenged on the ground that as a result, service conditions of the respondent were adversely affected since his chances of promotion were reduced. Relying upon the decision in the State of Maharashtra v. Chandrakant Anant Kulkarni, (1981) 4 SCC 130, this Court held that a mere chance of promotion was not a condition of service and the fact that there was a reduction in the chance of promotion would not amount to a change in the conditions of service." 35. It is in the background of the aforesaid submission advanced at the hands of learned counsel, that we would consider the validity of the merger of cadres contemplated by Rule 4 of the TA Rules, 2003 and Rule 5 of the STA Rules, 2003. The position in the present controversy is not comparable to the position examined by this Court in the judgments referred to hereinabove. It needs to be understood, that the cadre of Data Entry Operators, was created out of the original ministerial cadre. It is, therefore apparent, that the members of the two cadres were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the TA Rules, 2003 and the STA Rules, 2003. By the mandate of the above Rules, all posts in equivalent pay-scales were placed at the same level. Posts in the higher scale of pay, were given superiority on the subject of inter se seniority, with reference to posts in the lower scale of pay. In our considered view, the above determination, at the hands of the rule framing authority, on the issue canvassed before us, cannot be termed either arbitrary or discriminatory. We are, therefore satisfied in concluding, that the provisions of Rule 4 of the TA Rules, 2003 and Rule 5 of the STA Rules, 2003, cannot be faulted on the touchstone of Articles 14 and 16 of the Constitution of India. 36. For all the reasons recorded hereinabove, we are satisfied, that the different orders passed by the Administrative Tribunal, and the common order dated 13.4.2007 passed by the High Court, are liable to be set aside. The same are accordingly hereby set aside. The appeals filed by those who moved to the cadre of Data Entry Operators from the ministerial cadre, and were thereupon amalgamated in the cadre of Tax Assistants/Senior Tax Assistants, are allowed. The connected appeals preferred by the Union ..... X X X X Extracts X X X X X X X X Extracts X X X X
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