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TMI Blog2018 (2) TMI 1807X X X X Extracts X X X X X X X X Extracts X X X X ..... r Divisional Clerk (UDC) after seven years service. Before completion of regular service of seven years required for promotion to grade of UDC by the respondent, concerned ministry had issued a letter dated 14th December, 1998 and had relaxed condition of seven years service for promotion to the grade of UDC by two years, limiting its operation for a period of one year from the date of issue of the letter. Factually, the respondent did not receive benefit of this letter within stipulated period of one year, although, he had been included in the zone of consideration in Departmental Promotion Committee (DPC) of 6th August, 1999 for promotion to the grade of UDC. Since he had been placed in extended zone and there had been lack of vacancy he had not been considered for promotion at that time. The respondent had been subsequently promoted to the grade of UDC with effect from 27th March, 2001 in the DPC held during the year 2001. 4. In the year 2001 pursuant to letter of ministry dated 19th July, 2001, the department had carried out cadre restructuring exercise. Under the restructuring process, which had been approved by the ministry and the cabinet, there had been reduction in number ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... motion to the post of inspector. She had been considered eligible for promotion. Having regard to rule GSR 1248 under which if a junior person is considered for promotion on completion of prescribed qualifying period in that grade, all persons senior to him in the grade would also be considered for promotion notwithstanding rendition of qualifying period of service in the grade, with the rider that he ought to have completed successful period of probation. 9. In the circumstances, the respondent had been notionally promoted to the grade of UDC with effect from 23rd August, 1999 by Pune-1 Commissionerate and was placed at serial No.358A in the seniority list of UDCs as on 1st January, 2002. 10. The petitioner's department held review DPC on 13th January, 2009 reviewing the DPCs held on 14th/17th July, 2006, 17th October, 2007 and 16th May, 2008 as a consequence of judgment of the Andhra Pradesh High Court and had considered case of the respondent along with other officers and had given them promotion to the cadre of inspector on notional basis with effect from 6th December, 2002. 11. As proceedings were pending before the commissioner upon application by the respondent in Februar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te qualifying regular service of five years in the grade of UDC nor had he passed the departmental examination. He submits that it ought to be considered that the respondent had been placed in the zone of consideration for promotion on account of letters dated 8th October, 2003 and 8th January, 2008 by the Ministry directing to consider cases of ministerial officers, who had passed departmental promotion test for promotion to the cadre of inspector, wherein relaxation of two years in qualifying service as one time measure had been granted. He submits that the respondent has in fact received benefit of GSR 1248 referred to above, since Smt. Sharmila Gupta had been considered eligible for promotion and has been given benefit accordingly. He submits that in view of GSR 1248 the respondent and six others were included in the zone of consideration and were held eligible to be promoted to the cadre of inspector and accordingly review DPC had been held on 13th January, 2009 for promoting the respondent and six others to the cadre of inspectors on notional basis with effect from 6th December, 2002. He submits that it ought to have been considered by the Chief Commissioner for Persons with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sal of the impugned judgment shows that it had been adverted to that Additional Commissioner, Customs and Central Excise and Service, Pune had reiterated statements on either side and had referred to a copy of judgment of the Supreme Court dated 25th April, 1990 in the case of "Virendra Kumar V/s Avinash Chandra Chaddha" in support of the contention that the respondent cannot be paid for period of notional promotion. The order refers to that the persons with disabilities namely P. J. Talekar, Jairaj Chitte and V. K. Kakhandki were promoted as inspectors under order dated 9th January, 2004 issued by the Commissioner of Central Excise and thus considered that the respondent had been prevented from working on the higher post in the absence of his promotion to the post of inspector, despite being eligible to the same. A decision of the Supreme Court in the matter of "Food Corporation of India V/s S. N. Nagarkar" in Appeal No. 2489 of 2000 had also been referred to wherein it had been considered that for no fault of a person, he had been deprived of promotional benefits. 17. After referring to the contentions on either side, the Tribunal has observed in paragraph No. 5 as under : " 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eviving promotional posts as were subsisting prior to 6th January, 2000, the respondent purportedly moved proceedings. 20. The three persons, namely, Talekar, Chitte and Kakhandki are admittedly senior to the respondent in cadre. They have been appointed as LDCs before the respondent had been appointed. Shri. Talekar had joined service in 1984 as LDC, he was promoted as UDC in the year 1989 and as Tax Assistant in 1993. Shri. Chitte had been promoted in the grade of UDC in 1993 and as Tax Assistant in 1999. Shri Kakhandki had joined the department in 1988 and had been promoted as UDC in 1993 and as Tax Assistant in 2000. All these officers were senior to the respondent and were eligible to be considered for promotion in the cadre of inspectors in DPC held on 20th / 21st January, 2003 as they possessed requisite qualifying service. 21. In the meanwhile, it appears, some concession had been given in qualifying service for promotion to higher posts and accordingly, the respondent had appeared and had passed the same. 22. Thus, the situation emerges, grievance had been made by the respondent that three senior officers had been given benefit of promotion in 2004 and not him. Said off ..... X X X X Extracts X X X X X X X X Extracts X X X X
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