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2015 (4) TMI 196 - SUPREME COURT

2015 (4) TMI 196 - SUPREME COURT - TMI - Challenge to constitutional validity of Rule 4 of the TA Rules, 2003 and Rule 5 of the STA Rules, 2003 - reconstitution of cadres - seniority dispute amongst employees of the Customs and Central Excise Department. - bifurcation, and reamalgamation of cadres. - Held that:- 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 an .....

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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 .....

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conclude, that the judgment rendered in Om Prakash Sharmas case (1985 (4) TMI 317 - SUPREME COURT) was incorrectly applied, while adjudicating upon the present controversy.

It is apparent from a collective perusal of the conclusions recorded in the judgments extracted in the foregoing paragraph, that chances of promotion do not constitute a condition of service. In that view of the matter, it is inevitable to hold, that the High Court erred in recording its eventual determination on .....

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inal ministerial cadre who had opted for appointment/absorption into the cadre of Data Entry Operators.

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 Operators, is mandated to be determined, for .....

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n of the process of computerization, in the Customs and Central Excise Department, the erstwhile members of the ministerial cadre needed to be trained in computer applications, and the erstwhile members of the cadre of Data Entry Operators required to be instructed in relevant procedures. Thus viewed, it is not possible for us to accept the contention of learned counsel, that either of the two cadres ought to be treated as superior to the other. The first contention, premised on Rule 4 of the TA .....

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lar 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 d .....

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laced 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 o .....

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Civil Appeal Nos. 2485-2490 of 2010, Civil Appeal Nos. 2491-2503 of 2010, Civil Appeal No. 2577 of 2010, Civil Appeal No. 10386 of 2013 - Dated:- 26-3-2015 - Jagdish Singh Khehar And S. A. Bobde,JJ. For the Appellant : Mr. K.Maruthi Rao, Adv. Ms. K. Radha, Adv. for Mrs. Anjani Aiyagari,AOR(NP) Mr. B. V. Balaram Das, AOR Mr. B. Krishna Prasad,AOR For the Respondent : Mr. Jayanth Muthraj, Adv. for Mr. C. K. Sasi,Adv. Mr. Fakhruddin, Sr. Adv. Mr. Vijay Kumar,AOR Mr. B. Krishna Prasad,AOR Mr. P. Na .....

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his was necessitated by the decision of the department to introduce computerization, in its functioning. The instant computerization project, which commenced in 1991-92, seems 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 acc .....

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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 Division Clerks, Lower Division Clerks, Stenographers (Senior Grade and Ordinary Grade), Draftsmen etc. Conditions of service of mem .....

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al Pay Commission in paragraph 11.45 of its report, the Government of India took upon itself the responsibility to examine the rationalization of pay scales for posts responsible for discharging work relating to data entry. The task sought to be undertaken was to prescribe uniform pay scales and designations for electronic data processing posts, in consultation with the Department of Personnel. Consequent upon the suggestions made by a committee set up by the Department of Electronics in Novembe .....

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C Rs.1400-2300 Promotional Grade 4 Data Entry Operator Grade D Rs.1600-2660 Promotional Grade 5 Data Entry Operator Grade E Rs.2000-3500 Promotional Grade Data Processing/Programming Staff 1 Data Processing Assistant Grade A Rs.1600-2660 Entry grade for graduates with Diploma/Certificate in Computer Application 2 Data Processing Assistant Grade B Rs.2000-3200 Promotional Grade 3 Programmer Rs.2375-3500 Direct entry for holders of degree in Engineering or postgraduation in Science/Maths etc., or .....

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lating 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 .....

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of India in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India. Rule 5 of the 1992 Rules provided, that all persons holding the ministerial posts of Key Punch Operators, Terminal Operators and Lower Division Clerks, who were performing the duties of Terminal Operators prior to the commencement of the 1992 Rules, would be deemed to be appointed as Data Entry Operators Grade A . Rule 5 of the 1992 Rules further postulated, that all Data Entry Operators Grad .....

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ect to the condition, that they had completed 3 years regular service and satisfied the conditions of eligibility stipulated in the 1992 Rules. On 9.9.1993, the Customs Department, issued a circular informing the employees who had exercised their option for appointment to the post of Data Entry Operator Grade A , that their option was final and could not be revoked. A number of employees holding ministerial cadre posts in the Customs and Central Excise Department, accordingly came to be appointe .....

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ssions per hour, for data entry work. The onward promotion from the post of Data Entry Operator Grade A was to the post of Data Entry Operator Grade B . The said promotional post was in the pay scale of ₹ 1350-30-1440-40-1800-EB-50-2200. To be eligible for promotion to the post of Data 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 whi .....

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clusively 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 Operator Grade D was to b .....

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s, that the cadre of Data Entry Operators, was separate from the original ministerial cadre. Persons from the original ministerial cadre were not eligible for promotion to the different levels of posts created under the 1992 Rules. Likewise, members of different levels in the cadre of Data Entry Operators, were no longer eligible for onward promotion to any post of ministerial cadre. Most significantly, an incumbent holding a cadre post under the 1992 Rules was no longer eligible for promotion t .....

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ly 211, 52 and 17 employees got promoted to the posts of Data Entry Operator Grade B , Grade C and Grade D respectively, under the 1992 Rules. The remaining individuals inducted into the cadre of Data Entry Operators from the original ministerial cadre, have continued to occupy the post of Data Entry Operator Grade A , even after having rendered services for more than 10-15 years i.e., without obtaining a single promotion. As against the aforesaid career progression under the 1992 Rules, the adm .....

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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 con .....

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of the cadres in the Customs and Excise Department, it is imperative for us to delve upon the effect of the TA Rules, 2003, as also, the STA Rules, 2003. We shall examine the aforementioned two sets of rules, in the following paragraphs. 9. The TA Rules, 2003 provided for the initial constitution of the cadre of Tax Assistants, through Rule 4 thereof. Rule 4 of the TA Rules, 2003 is being extracted hereunder:- 4. Initial Constitution.- (1) The person appointed on regular basis and holding the po .....

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ithin two years from the date of such appointment as Tax Assistant, pass the Departmental Examination as conducted by the competent authority, failing which he shall not be entitled to get any further increment. (3) Any person, who holds a post of Lower Division Clerk on regular basis and falls within the seniority list as determined by the appointing authority at the commencement of these rules shall, on passing the Departmental Computer Proficiency examination conducted by the appointing autho .....

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lerks and Data Entry Operator Grade-A." A perusal of Rule 4 of the TA Rules, 2003 reveals, that persons holding the posts of Upper Division Clerk and Data Entry Operator Grade A would be re-designated as Tax Assistants. The service rendered by them as Upper Division Clerk and Data Entry Operator Grade A respectively, would be taken into consideration as regular service rendered on the post of Tax Assistant (for purposes of promotion etc.). In addition to the above, Lower Division Clerks fal .....

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ould 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 ca .....

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y direct recruitment, and 10% by way of promotion. For promotion, the following conditions of eligibility were stipulated in column 12 of the schedule appended to the TA Rules, 2003:- From amongst the Lower Division Clerks and Head Havaldars who have rendered seven years of service in the Grade on regular basis and possess the following qualifications, namely:- (a) Matriculation or equivalent qualification from a recognized institution, and (b) Data Entry Speed of 5000 key depression per hour an .....

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mation was, against the post of Tax Assistant. 11. Insofar as the STA Rules, 2003 are concerned, the initial constitution therein was postulated in Rule 5 thereof. Rule 5 aforementioned is being extracted hereunder:- 5. Initial Constitution.- (i) All the persons appointed on the regular basis at the time of commencement of these rules to the Grade of Assistant, Tax Assistant, Upper Division Clerk (Special Pay), Data Entry Operator Grade B and C shall be deemed to have been appointed as Senior Ta .....

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t shall be done according 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 da .....

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ant 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 Assistant, Tax Assistant, Upper Division Clerk (Special Pay) and Data Entry Operator Grades B and C were merged as Senior Tax Assistants. The aforesaid merger contemplated the merger of posts belonging to the ministerial cadre, and posts belonging to the cadre of Data Entry Operator. Rule 5 .....

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of Assistant and Data Entry Operator Grade C were in the pay scale of ₹ 5000-8000, and thereby, were enjoying the highest scale amongst the posts merged, to constitute the cadre of Senior Tax Assistants. In order to regulate the inter-se seniority between the merged posts of Assistants and Data Entry Operators Grade C , Rule 5(ii) of the STA Rules, 2003 further provided, that the inter-se placement of persons holding such posts, would be based on the date on which such persons had been ac .....

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Grade B and Tax Assistants which had an inferior position adjudged on the basis of pay scales, vis-à-vis Data Entry Operators Grade C and Assistants, prior to the promulgation of the STA Rules, 2003, were placed en-masse below Data Entry Operators Grade C and Assistants, so as to preserve the said inferior position in the cadre of Senior Tax Assistants. Insofar as the inter-se placement between the Data Entry Operators Grade B and Tax Assistants is concerned, Rule 5(iii) of the STA Rules .....

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t 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 appointe .....

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It is relevant to mention, that in the first instance, a challenge to the rules referred to hereinabove, was raised at the hands of the erstwhile members of the ministerial cadre, namely, those members of the original ministerial cadre, who had not opted for appointment/absorption into the cadre of Data Entry Operators. In their challenge raised before the Central Administrative Tribunal, Madras Bench, Chennai (hereinafter referred to as, the Administrative Tribunal), a common order dated 30.12 .....

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o. 71 of 2004. It would be relevant to mention, that the solitary contention raised at the hands of the erstwhile members of the ministerial cadre (who had not opted for the appointment/absorption into the cadre of Data Entry Operators) was, that the process of bifurcation of cadres followed by the re-amalgamation thereof, had adversely affected their seniority. Accordingly, the erstwhile members of the ministerial cadre, claimed restoration of the position of their seniority as it originally ex .....

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6.4.2004, 2.8.2004 and 14.10.2004, on the basis of the law laid down by this Court in Om Prakash Sharma v. Union of India, 1985 (Supp.) SCC 218. 15. The orders passed by the Administrative 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 .....

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o 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 restructure of the cadres and the merger/integration of ministerial cadre and technical cadre before the Tribunal. It i .....

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Central Excise and Customs Departments should be taken into consideration. On the other hand, the writ petitioners claim that the fixation of inter se seniority should be on the basis of the date of regular appointment in the respective grades, but subject to the condition that inter-se placement in the respective category, is legal and reasonable. It is, therefore apparent, that the issue agitated before the High Court was the same as had been agitated before the Administrative Tribunal. While .....

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nditions like passing the Departmental Tests like the case of a LDC who is required to pass the same to seek promotion to the next category of UDC, while the rest of the LDCs. who have not opted for the post of Data Entry Operators and were stick on to the much higher responsible position, were put in a most disadvantageous position. The inter se seniority has been fixed by the impugned Rules only based on the pay and giving a go-bye to all the norms prescribed by the Apex Court. Since the impug .....

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ersy 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 blo .....

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ly prejudiced and how the restructured cadres have paved way for the junior DEOs to have a march over the other senior employees of the erstwhile ministerial cadre and get fortuitous advantage. It has also been demonstrated by materials how the impugned Rules are working hard against the senior eligible candidates without any promotional avenue, since being blocked by the far junior Data Entry Operators. Though, as held by the Apex Court, seniority is not a fundamental right, the State should ha .....

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s held by the Apex Court in the above Judgement, even there is an obligation on the part of the State under Articles 14 and 16 of the Constitution to create promotional avenues for the employees and any Rule or procedure, which goes against the above dictum, could well be termed as an arbitrary exercise of power and violative of Articles 14 and 16 of the Constitution. 45. The impugned Rules put LDCs/UDCs/Special Pay UDCs/Tax Assistants in a most disadvantageous position than their far juniors of .....

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The above consideration reveals, that the co-incidental prejudice suffered by the erstwhile members of the ministerial cadre, consequent upon the merger of cadres constituted the foundational basis, of the determination. Their lost chances of promotion, and the prejudice suffered by them on the subject of seniority, on account of deprivation of the chances of promotion, remained uppermost in the mind of the High Court, while recording its final conclusion in paragraph 46 as under:- 46. We have g .....

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tial 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 o .....

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e controversy settled by this Court in the aforementioned judgment, it is essential to extract the conclusions drawn therein. The same are accordingly being extracted hereunder:- 2. Department styled as workshop mentioned at Serial No. 2 above was merged with the department office of the Chief Electrical Engineer, Bombay. This merger continued till July 31, 1979. Effective from August 1, 1979, all the three original departments trifurcated on August 31, 1956 were re-amalgamated in the matter of .....

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ppellant 3 is at Serial No. 10. The department has assigned seniority to Respondents 3-6, in the same seniority list at Serial Nos. 2, 5, 6 and 9 respectively in the cadre of head clerks. The appellants contend that when the three departments had a common seniority list, the appellants were senior to Respondents 3 to 6, but after trifurcation and re-amalgamation Respondents 3 to 6 who belonged to erstwhile workshop staff and who were amalgamated with the staff of the Chief Electrical Engineer, B .....

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t, 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 B .....

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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 has been admitted in the counter-affidavit filed on behalf of the Railway Administration. It is again admitted that the three appellants since their entry into service were senior to Respondents 3 to 6. For the administrative convenience the Railway Administration trifurcated the cadres. In other words, three units were separated from e .....

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ncluding Respondents 3 to 6 were taken over on the seniority list maintained by the Bombay office. It is admitted that on account of availability of vacancies in the Bombay office Respondents 3 to 6 got some accelerated promotions in the cadre of head clerks. Surprisingly after a span of 23 years, Railway Administration reconsidered its earlier decision and detached the workshop staff from the office of the Chief Electrical Engineer, Bombay and brought it back to Jhansi and three former departme .....

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lace, Respondents 3 to 6 could not score a march over erstwhile seniors on any valid principle of seniority. This would unquestionably be denial of equality under Article 16 of the Constitution. It may be that they might have enjoyed some accelerated promotion when workshop staff was amalgamated with the Bombay office. But when they were repatriated and re-amalgamated with original two offices and brought back on the common seniority list, they must find their original place qua the appellants. .....

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erves 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 .....

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r trifurcation, was undone by re-amalgamation, which resulted in the restoration of status quo ante, as it prevailed up to 31.8.1956. In the background of the foundational facts narrated hereinabove, this Court concluded that the process of trifurcation, followed by the process of reamalgamation, restoring the status quo ante, could not result in some of the members of the erstwhile common cadre in scoring a march with reference to seniority, over others who were earlier senior to them. We shall .....

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ions were made independent departments, and the employees working in each of the departments whilst continuing as clerks, senior clerks, head clerks and chief clerks, were placed in different seniority lists. All the above posts in the three departments were re-amalgamated. Consequent upon re-amalgamation, a common seniority list came to be framed for clerks, senior clerks, head clerks and chief clerks. It is in the above circumstances, that this Court concluded, that the process of trifurcation .....

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arrayed in the seniority list, in the same manner as they were positioned prior to the trifurcation. 19. Insofar as the present controversy is concerned, it is 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 .....

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enues 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. A bifurcation simpliciter woul .....

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, 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. It is, therefore, that we must conclude, that the judgment rendered in Om Prakash Sharma s case (supra) was incorrectly app .....

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ctronic Data Processing Posts (Group C Technical Posts) Recruitment Rules, 1992), came to be merged into independent cadres of Tax Assistants and Senior Tax Assistants. What was contemplated under the TA rules, 2003 and the STA Rules, 2003, was an amalgamation of posts from two separate cadres. This certainly did not result in restoration of the status quo ante, as it existed prior to the promulgation of the 1992 Rules. The position here is of amalgamation, and not re-amalgamation as is in Om Pr .....

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x 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 pos .....

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adre also comprised of posts of clerks, senior clerks, head clerks and chief clerks. The conclusions drawn in the above judgment, therefore, cannot be applicable to the facts and circumstances of the present case. We are satisfied in concluding, that the Courts below clearly erred in disposing of/determining the controversy in hand by applying the law declared by this Court in Om Prakash Sharma s case (supra). 22. We shall now venture to deal with another aspect of the matter, emerging out of th .....

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ministerial cadre, resulting in lost chances of promotion. The aforesaid consideration could have been justified only if chances of promotion are treated as conditions of service. Insofar as the instant aspect of the matter is concerned, this Court has repeatedly examined the issue whether chances of promotion constitute conditions of service. In this behalf, reference may be made to a few judgments rendered by this Court: (i) First of all, we may advert to the decision rendered by this Court in .....

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d by the former State Government of Madhya Pradesh, as amended on January 20, 1960, mere passing of the departmental examination conferred no right on the STIs of Bombay, to promotion. By passing the examination, they merely became eligible for promotion. They had to be brought on to a select list not merely on the length of service, but on the basis of meritcum- seniority principle. It was, therefore, nothing but a mere chance of promotion. In consequence of the impugned orders of reversion, al .....

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lso 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 b .....

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ted in delayed chance of promotion. It was, inter alia, urged on behalf of the petitioners that the situation brought about by the rules of July 30, 1959 constituted variation to their prejudice in the conditions of service applicable to them immediately prior to the reorganisation of the State and the rules were consequently invalid. While repelling this submission the Constitution Bench held: (SCC p. 329, para 15) All that happened as a result of making promotions to the posts of Deputy Collec .....

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ion of service. In Purohit case (supra), the districtwise seniority of sanitary inspectors was changed to Statewise seniority, and as a result of this change the respondents went down in seniority and became very junior. This, it was urged, affected their chances of promotion which were protected under the proviso to Section 115, sub-section (7). This contention was negatived and Wanchoo, J., (as he then was), speaking on behalf of this Court observed: It is said on behalf of the respondents tha .....

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f 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. Appa .....

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d in a class separate from those whose promotions were to be made thereafter. The fact that some Supervisors A had been promoted before the coming into force of the order dated December 28, 1965 and the Circular dated January 20, 1966 could not, therefore, constitute the basis for an argument that those Supervisors A whose cases came up for consideration for promotion thereafter and who were promoted in due course in accordance with the rules were discriminated against. They apparently did not f .....

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ulate the holding of a post by a person right from the time of his appointment (emphasis supplied) to his retirement and even beyond, in matters like pensions etc. In I.N. Subba Reddy v. Andhra University, (1977) 1 SCC 554, the same view was reiterated. In Mohd. Shujat Ali v. Union of India, (1975) 3 SCC 76, a Constitution Bench held that the rule which confers a right to actual promotion or a right to be considered for promotion is a rule prescribing a condition of the service. In Mohd. Bhakar .....

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ra, (1974) 1 SCC 317. No doubt conditions of service may be classified as salary, confirmation, promotion, seniority, tenure or termination of service etc. as held in State of Punjab v. Kailash Nath, (1989) 1 SCC 321, by a Bench of two Judges but the context in which the law therein was laid must be noted. The question therein was whether non-prosecution for a grave offence after expiry of four years is a condition of service? While negativing the contention that non-prosecution after expiry of .....

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ourt 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 .....

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clusion and approval of the name in the select-list by the UPSC, after considering the objections if any by the Central Government is also a condition precedent. Suppose if B is far junior to A in State Services and B was found more meritorious and suitable and was put in a select-list of 1980 and accordingly B was appointed to the Indian Police Service after following the procedure. A was thereby superseded by B . Two years later A was found fit and suitable in 1984 and was accordingly appointe .....

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ate holding No. 1 rank according to the roster as he was most meritorious in the State service among general candidates. B scheduled castes candidate holds No. 3 point in the roster and C , scheduled tribe holds No. 5 in the roster. Suppose Indian Police Service Recruitment Rules also provide reservation to the Scheduled Castes and Scheduled Tribes as well. By operation of the equality of opportunity by Articles 14, 16(1), 16(4) and 335, B and C were recruited by promotion from State Services to .....

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rvice. By operation of rule of reservation B and C became senior and A became junior in 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 co .....

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at 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) 4 SCC 13; K. Nagaraj v. State of A.P., (1985) 1 SCC 523; T.R. Kapur v. State of Haryana, 1986 Supp. SCC 584, and a host of other decisions. But the question is whether the Rules can be amended taking away the .....

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is governed by the existing rules and is required to be worked out accordingly. No one has a vested right to promotion or seniority but an officer has an interest to seniority acquired by working out the Rules. It would be taken away only by operation of valid law. Right to be considered for promotion is a rule prescribed by conditions of service. A rule which affects the promotion of a person relates to conditions of service. The rule merely affecting the chances of promotion cannot be regarde .....

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e considered for promotion has always been maintained. Seniority is a facet of interest. The rules prescribe the method of recruitment/selection. Seniority is governed by the rules existing as on the date of consideration for promotion. Seniority is required to be worked out according to the existing rules. No one has a vested right to promotion or seniority. But an officer has an interest to seniority acquired by working out the rules. The seniority should be taken away only by operation of val .....

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ion 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 subjec .....

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promotion, does not attract Article 311(2) of the Constitution since it is not covered by the expression reduction in rank. 200. Thus to have a particular position in the seniority list within a cadre can neither be said to be accrued or vested right of a government servant and losing some places in the seniority list within the cadre does not amount to reduction in rank even though the future chances of promotion get delayed thereby. It was urged by Mr Sachar and Mr Mahabir Singh appearing for .....

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of Maharashtra v. Chandrakant Anant Kulkarni, (1981) 4 SCC 130, this Court held: (SCC p. 141, para 16) 16. Mere chances of promotion are not conditions of service and the fact that there was reduction in the chances of promotion did not tantamount to a change in the conditions of service. A right to be considered for promotion is a term of service, but mere chances of promotion are not. 201. To the said effect a judgment of this Court in the case of K. Jagadeesan v. Union of India, (1990) 2 SCC .....

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17) In our opinion, what was affected by the change of policy were merely the chances of promotion of the Air Vice- Marshals in the Navigation Stream. As far as the posts of Air Marshals open to the Air Vice-Marshals in the said stream were concerned, their right or eligibility 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 Pun .....

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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 filing a contempt petition. In Se .....

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and promotees has been fixed and called upon the State Government to pass a speaking order assigning position in the gradation list. The State Government issued a fresh notification on 24-7-1987 giving detailed reasons reaffirming the earlier seniority which had been notified on 29-9- 1986. Prior to the aforesaid notification of the State Government Shri Gupta had filed a writ petition in the Punjab and Haryana High Court which had been registered as CWP No. 6012 of 1986 claiming his seniority .....

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earned Single Judge accepted the stand of the promotees and Shri Gupta was placed below one Shri O.P. Gagneja. The said Shri Gupta filed two appeals to the Division Bench against the judgment of the learned Single Judge, which was registered as Letters Patent Appeals Nos. 367 and 411 of 1992. The aforesaid letters patent appeals were allowed by judgment dated 27-8-1992. This judgment of the Division Bench of the Punjab and Haryana High Court was challenged by the State of Haryana in the Supreme .....

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he 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 p .....

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employees of the State Government. That apart Article 309 itself stipulates that the appropriate legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State subject to the provisions of the Constitution. Proviso to Article 309 confers power on the President in connection with the affairs of the Union and on the Governor in connection with the affairs of the State to make rules reg .....

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the gradation list and thereby their accrued and vested rights would get jeopardised and their future chances of promotion also would be seriously hampered and such violation tantamounts to violation of rights under Part III of the Constitution. For the reasons already given while dealing with the aforesaid contention in connection with the Public Health Branch and the Buildings and Roads Branch the contention raised in the transfer case cannot be sustained and, therefore, the transfer case wou .....

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f India & Ors. v. Colonel G.S. Grewal, (2014) 7 SCC 303, wherein this Court observed as under:- 28. As pointed out above, the Tribunal has partly allowed the OA of the respondent primarily on the ground that the decision contained in the Government Order dated 23-4-2010 amends the promotion policy retrospectively thereby taking away the rights already accrued to the respondent in terms of the earlier policy. It is also mentioned that the revised policy fundamentally changes the applicant s p .....

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ecomes 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 suffer .....

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dent can be treated differently even if he is allowed to remain in DGQA viz. whether not allowing him to take further promotions, which benefit is still available to others whose permanent secondment is not in dispute, would amount to discrimination or arbitrariness thereby offending Articles 14 and 16 of the Constitution of India. In our opinion, these, and other related issues, will have to be argued and thrashed out for coming to a proper conclusion. 23. It is apparent from a collective perus .....

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es of promotion of the erstwhile members of the ministerial cadre, namely, those members of the original ministerial cadre, who had not opted for appointment/absorption into the cadre of Data Entry Operators, with reference to and in comparison with, those members of the original ministerial cadre who had opted for appointment/absorption into the cadre of Data Entry Operators. 24. As a proposition of law it is imperative for us to record, that chances of promotion do not constitute conditions of .....

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the initial constitution of the cadres of Tax Assistants and Senior 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. .....

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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 Operators, is mandated to be determined, for purposes of further promotion, with effect from the date on which the concerned incumbent was appointed on regular basis as such. The submission advanced by the learned counsel was, that sub-rule (2) .....

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A , had per se been found to be deficit, for discharging duties against the post of Tax Assistant. The aforesaid deficiency was sought to be satisfied and fulfilled, according to learned counsel, by requiring the Data Entry Operator Grade A , to qualify a departmental examination, within a period of two years. That being the acknowledged position emerging from the statutory rules, the contention advanced was, that the post of Data Entry Operator Grade A , could not have been treated as equal to .....

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perators Grade A , who came to be appointed as Tax Assistants, at the initial constitution of the aforesaid cadre, under the mandate of Rule 4 of the TA Rules, 2003, that the erstwhile members of the ministerial cadre, on the above analogy, must also be likewise considered to be deficit in effectively discharging the duties assigned to the post of Tax Assistant, inasmuch as, sub-rule (3) of Rule 4 of the TA Rules, 2003 likewise mandates, that a member of the ministerial cadre holding the post of .....

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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 promulga .....

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the existing persons who were proficient in matters of relevant procedures, needed working experience with reference to computer applications. Likewise, Data Entry Operators, it was felt, needed proficiency with reference to relevant procedures. Therefore, it was pointed out, that neither the erstwhile members of the ministerial cadre, nor the members of the cadre of Data Entry Operators, were fully qualified to handle the duties and responsibilities in the Customs and Central Excise Department, .....

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e aforesaid provision, to which learned counsel for the rival parties have expressed their approval, the contention advanced by the learned counsel was based on clause (v) of Rule 5 of the STA Rules, 2003. Yet again, the contention was, that Data Entry Operators Grade C could not be equated with Assistants, and likewise Data Entry Operators Grade B could not be equated with Tax Assistants. The pointed submission in this behalf was, that Data Entry Operators were required by the mandate of clause .....

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ry Operators was, that the deficiency highlighted by the learned counsel with reference to Data Entry Operators need to be examined closely, inasmuch as, a similar deficiency was likewise highlighted in clause (v) of Rule 5 of the STA Rules, 2003, 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, failin .....

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nstitution 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. Having given our thoughtful consideration to the submissio .....

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on the completion of the process of computerization, in the Customs and Central Excise Department, the erstwhile members of the ministerial cadre needed to be trained in computer applications, and the erstwhile members of the cadre of Data Entry Operators required to be instructed in relevant procedures. Thus viewed, it is not possible for us to accept the contention of learned counsel, that either of the two cadres ought to be treated as superior to the other. The first contention, premised on .....

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them. 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. The aforesaid determination, under Rules 4 and 5 referred to hereinabove, according to learned counsel, is wholly impermissible in law. 33. In order to canvass the proposition noticed in the foregoing paragraph, learned counsel placed reliance on the decision rendered by this Court in Chandrakant Anant K .....

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ated 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 .....

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ar dated May 11, 1957 to all the State Governments stated inter alia that it agreed with the views expressed on behalf of the States representatives that it would not be appropriate to provide any protection in the matter of departmental promotion. This circular has been interpreted as a prior approval of the Central Government in terms of the proviso to sub-section (7) of Section 115 of the Act in the matter of change in the conditions of service relating to departmental promotions. 10. The fol .....

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) nature and duties of a post; (b) powers exercised by the officers holding a post, the extent of territorial or other charge held or responsibilities discharged; (c) the minimum qualifications, if any, prescribed for recruitment to the post, and (d) the salary of the post. It is well settled that these principles have a statutory force. 11. There is a long line of decisions of this Court starting from the Union of India v. P.K. Roy, (1968) 2 SCR 186, laying down that the Central Government has .....

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e Act prohibiting the Central Government in any way from taking the aid and assistance of the State Government in the matter of effecting the integration of services. As observed by this Court in Roy case the usual procedure followed by the Central Government in the matter of integration of services generally, is in order. It is not open to the court to consider whether the equation of posts made by the Central Government is right or wrong. This was a matter exclusively within the province of th .....

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ot 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 Com .....

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rly constituted cadre of ASTOs, but there were posts of STIs in the pay scale of ₹ 120-8-144-EB-8- 200-10/2-250. It would have been inequitable and unfair to equate ASTOs from Madhya Pradesh and Hyderabad with STIs from Bombay, looking to the nature of their posts, the powers and responsibilities and the pay scales attached to the same. The ASTOs from Madhya Pradesh and Hyderabad were, in the first instance, superior to STIs in their respective States and the post of ASTO in those States w .....

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om Bombay be fixed in the cadre of STIs in the reorganised State of Bombay on the basis of continuous service including that in the lower grade. The principle adopted by the State Government for determining their relative inter se seniority was obviously wrong, being contrary to the principles settled at the Chief Secretaries Conference. As already stated, the Government of India, on representation by the affected ASTOs from Madhya Pradesh and Hyderabad, in consultation with the Central Advisory .....

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f STIs and that the inter se 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 .....

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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 either have retired or are on the verge of retirement. 20. There was thus no alternative for the State Government but to suspend the operation of the amendment made on January 20, 1961 to Rule 1 (b)(ii) of the Recruitment Rules, by its order dated October 1, 1965, which made t .....

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sed with the requirement of passing the departmental examination in the case of STIs from the former State of Bombay. 21. In the end, reverting back to the main question. On an overall view of things, we are satisfied that the State Government acted with the best of intentions. It endeavoured to strike a balance between the competing claims to relative seniority. When sub-section (5) of Section 115 of the Act speaks of fair and equitable treatment , obviously it envisages a decision which is fai .....

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qualifications and different duties and powers. By merging the three cadres, according to the appellant before this Court, unequals had been treated as equals. The pointed contention on behalf of the appellant, who belonged to one of the three cadres was, that he had been placed in a condition, worse than the position he occupied in the original cadre. The claim of the appellant was, that his chances of promotion had been substantially diminished. One of the grounds for raising the challenge was .....

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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 sc .....

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he seniority list has gone down. Rule 9 of the Central Labour Service Rules, 1987 under which the merger is effected, lays down the rules of seniority. It provides that the inter se seniority of the officers appointed to the various grades mentioned in Schedule I at the initial constitutional stage of the service shall be determined according to the length of regular continuous service in the grade subject to maintenance in the respective grade of inter se seniority of officers recruited in thei .....

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enior to the Senior Labour Officers. 17. Explaining the proviso the respondents have said that before 31-12-1972 Assistant Labour Commissioners were in a higher pay scale than Labour Officers. The parity between their pay scales came about only from January 1973. That is why to preserve their inter se position, Assistant Labour Commissioners appointed prior to 31-12- 1972 have been placed above Labour Officers. Similarly, Regional Labour Commissioners drew a higher pay scale than Senior Labour O .....

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hat by reason of such a merger, the chance of promotion of some of the employees may be adversely affected, or some others may benefit in consequence. But this cannot be a ground for setting aside the merger which is 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 si .....

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f 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 originally discharging similar duties. It is only as a consequence of the administrativ .....

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other cadre of employees exclusively thereafter discharged duties aimed at computerization of the functioning of the department. Even though, it is apparent, that the Data Entry Operators exclusively functioned towards the process of computerization of the functioning of the Customs and Central Excise Department, yet that could not be possible without their existing experience in the erstwhile ministerial cadre. Consequent upon the merger of posts, consequent, upon the promulgation of the TA Rul .....

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aminations, whereby, the two cadres were trained for discharging their duties efficiently, on merger, whilst holding the posts of Tax Assistants/Senior Tax Assistants. It is, therefore, not possible for us to accept, that there was any serious difference between the two merged cadres, either on the issue of nature of duties, or on the subject of powers exercised by the officers holding the post, or the extent of territorial or other charge held, or responsibilities discharged by them, or for tha .....

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