TMI Blog2015 (4) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... erial 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. It is, therefore, that we must conclude, that the judgment rendered in Om Prakash Sharma’s case (1985 (4) TMI 317 - SUPREME COURT) was incorrectly applied, while adjudicating upon the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 discharged duties aimed at computerization of the functioning of the department. Merger of the cadres, and the determination of the inter se seniority on merger, were justifiably det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 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), Upp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 post-graduation in Computer Application Or By promotion from Data Processing Assistant Grade B 4 Senior Programmer Rs.3000-4500 Promotional Grade In addition to those jobs and machine equipment instrument mentioned 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y came to be appointed as Data Entry Operators Grade A . 6. Under the mandate of the 1992 Rules, the post of Data Entry Operator Grade A was assigned the pay scale of ₹ 1150-25-1500. It was the lowest post under the 1992 Rules. The Schedule appended to the 1992 Rules provided, that to be eligible for appointment to the post of Data Entry Operator Grade A , an individual should have qualified the 12th standard or equivalent examination. Additionally, he/she should possess a speed of not less than 8000 key depressions 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 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 promotion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 administration found that the ministerial cadre employees holding the posts of Lower Division Clerk, Upper Division Clerk, and erstwhile Tax Assistant etc. were promoted (during the same period of service) to the post of Inspector (Ordinary Scale), and even further up to the post of Commissioner on the executive side, and up to the post of Chief Accounts Officer 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. (4) The Upper Division Clerks and Data Entry Operators Grade-A shall be placed en-block senior 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 grade shall not be disturbed. (5) Lower Division Clerks shall be placed below Upper Division Clerks 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Tax Assistants under these rules. The service rendered by them before commencement of these rules shall be taken into account for deciding the eligibility for promotion to the next higher grade. (ii) Assistants (Rs.5000-8000) and Data Entry Operator Grade C (Rs.5000-8000) are being redesignated as Senior Tax Assistants in the same scale of pay. Therefore, the Assistants and Data Entry Operator Grade 'C' shall be placed enblock senior to the other categories. However their inter-se-placement 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 shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assistants, who were earlier placed in the pay scale of ₹ 4500-7000, and thereafter placed in the higher scale of ₹ 5000-8000, would be placed en-block below Assistants and Data Entry Operators Grade C . In other words, the posts of Data Entry Operators Grade B and Tax Assistants which had an inferior position adjudged on the basis of pay scales, vis- -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, 2003 provided, that the date of their regular appointment in their respective grades, would 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 Cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had adversely affected their seniority. Accordingly, the erstwhile members of the ministerial cadre, claimed restoration of the position of their seniority as it originally existed, with reference to such other members of the ministerial cadre who had opted for absorption into cadre of Data Entry Operators, and who had thereafter, as a matter of re-amalgamation (under the provisions of the TA Rules, 2003 and the STA Rules, 2003) been appointed as Tax Assistants and Senior Tax Assistants respectively. The instant claim raised by the erstwhile members of the ministerial cadre, came to be accepted by the Administrative Tribunal vide orders dated 30.12.2003, 30.4.2004, 26.4.2004, 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, 41879, 46155 of 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned Rules they were afforded fortuitous advantage that too without any stringent conditions 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 impugned legislation suffers from the vice of discrimination and unreasonableness, we hold that the impugned Rules are arbitrary and violative of Articles 14 and 16 of the Constitution, since they give unreasonable advantage and a steep forward for an otherwise low category persons like 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... niors of Data Entry Operators, even though the nature of duties and powers exercised by them while holding the post of LDCs/UDCs/Special Pay UDCs/Tax Assistants not only carry a complex nature of duties but also high responsibilities, which would increase manifold by promotion from LDC to UDC/Special Pay UDC and from UDC/Special Pay UDC to Tax Assistant. Therefore, we have no hesitation to hold that the impugned Rules are violative of Articles 14 and 16 of the Constitution and are liable to be quashed. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, Bombay, obtained accelerated promotion because of easy availability of vacancies. Consequently, when re-amalgamation was introduced from August 1, 1979 when Respondents 3 to 6 reverted to the common seniority list with appellants and other similarly situated persons, they scored a march over the appellants because of a fortuitous event. The contention in terms is that where staff employed in different units under the administrative control of one higher officer 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on seniority list cadre-wise. This factual averment is unambiguously admitted. Consequent upon amalgamation in 1979 a fresh common seniority list was drawn up in which cadre-wise Respondent 3 was shown senior to Appellants 1 and 2 and Respondents 5, 6 and 9 were shown senior to Appellant 3. Obviously when the amalgamation took place, 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. This is not a case where appellants were passed over at the time 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... malgamated. 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, and subsequent re-amalgamation, would result in denial of equality, if persons who were junior prior to 31.8.1956, were assigned positions of seniority above to those who were senior to them prior to the trifurcation. And that, such an action would result in denial of equality, provided for under Article 16 of the Constitution of India. It was, therefore concluded, that consequent upon the re-amalgamation, resulting in the employees being brought back in the common seniority list, they must be 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Land Customs Department Group C Posts Recruitment Rules, 1979), and the posts under the cadre of Data Entry Operators (regulated by the Electronic 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 Prakash Sharma s case (supra). Members of the two separate cadres, which were sought to be amalgamated, were required at the time of initial constitution of the cadres, to qualify the departmental examination, and alternatively the departmental computer 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we may advert to the decision rendered by this Court in State of Maharashtra Anr. v. Chandrakant Anant Kulkarni Ors., (1981) 4 SCC 130, wherein a three Judge Bench of this Court held as under:- 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. Under the Departmental Examination Rules for STOs, 1954, framed 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, 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 contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that as their chances of promotion have been affected their conditions of service have been changed to their disadvantage. We see no force in this argument because chances of promotion are not conditions of service. It is, therefore, clear that neither the Rules of 30-7-1959, nor the procedure for making promotions to the posts of Deputy Collector divisionwise varies the conditions of service of the petitioners to their disadvantage. xxx xxx xxx 15. 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 trea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his condition of service. In State of Mysore v. G.B. Purohit, 1967 SLR 753, this Court held that a rule which merely affects chances of promotion cannot be regarded as varying a condition of service. Chances of promotion are not conditions of service. The same view was reiterated in another Constitution Bench judgment in Ramchandra Shankar Deodhar v. State of Maharashtra, (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 4 years is not a condition of service, this 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 sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duled 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 Central Services and were appointed earlier to A in 1980. A thereafter in the next year was found suitable as a general candidate and was appointed to the Indian Police Service. Can A thereafter contend that since B and C were appointed by virtue of reservation, though were less meritorious and junior to him in the State service and gradation list would not become senior to him in the cadre as IPS officer. Undoubtedly B and C , by rule of reservation, had stolen a march over A from the State Service. 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 se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aswamy recorded his conclusion in paragraph 153. On the issue in hand, sub-paragraph AB of paragraph 153 is relevant and is being extracted hereunder:- AB. A distinction between right to be considered for promotion and an interest to be 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 valid law. Right to be considered for promotion is a rule prescribed by conditions of service. A rule which affects chances of promotion of a person relates to conditions of service. The rule/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 conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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 228, wherein this Court held: (SCC pp. 230-31, para 7) The only effect is that his chances of promotion or his right to be considered for promotion to the higher post is adversely affected. This cannot be regarded as retrospective effect being given to the amendment of the rules carried out by the impugned notification and the challenge to the said notification on that ground must fail. 202. Again in the case of Union of India v. S.L. Dutta, (1991) 1 SCC 505, this Court held: (SCC p. 512, para 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 Punjab Service of Engineers ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by judgments dated 24-1-1992 and 4-3- 1992, respectively, whereunder the learned 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 Court which has been registered as CAs Nos. 1448-49 of 1993. This Court granted leave and stayed the operation of the judgment in the matter of fixation of seniority. The promotees also challenged the said judgment of the Division Bench in this Court which has been registered as CAs Nos. 1452-1453 of 1993. During the pendency of these appeals in this Court, an Ordinance 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in question dealing with the service conditions of the engineers belonging to the Irrigation Branch must be held to be a valid piece of legislation passed by the competent legislature and by giving it retrospective effect no constitutional provision has been violated nor has any right of the employee under Part III of the Constitution been infringed requiring interference by this Court. (v) Finally, reference may be made to a decision rendered by this Court in Union of 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 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 promotio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho 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 service, and as such, mere alteration of chances of promotion, would not per se call for judicial interference. The above general proposition would not be applicable, in case the chances of promotion are altered arbitrarily, or on the basis of considerations which are shown to be perverse or mala fide. 25. In the background of the factual and legal position debated and concluded hereinabove, only one submission survives for our consideration, namely, whether the inter se seniority determined at 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and as such, violative of Articles 14 and 16 of the Constitution of India. 27. In order to counter the submission advanced at the hands of the learned counsel, as has been narrated in the foregoing paragraph, it was the contention of learned counsel representing the erstwhile Data Entry Operators 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 Lower Division Clerk on regular basis, and falling within the seniority list determined by the appointing authority, would have to pass the departmental computer 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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 (v) of Rule 5 of the STA Rules, 2003, to qualify a departmental examination for achieving proficiency in the relevant procedures, within two years, failing which they would not be eligible for any further increment. The instant submission is akin to the one advanced at the hands of learned counsel on the basis of sub-rules (3) and (4) of Rule 4 of the TA Rules, 2003. The response at the hands of the learned senior counsel representing the Union of India, and the members of the cadre of Data Entry 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the TA Rules, 2003, and under Rule 5 of the STA Rules, 2003, was based exclusively on the pay-scales attached to 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 Kulkarni s case (supra). The controversy in the judgment cited for our consideration, was aimed at determining, whether there was denial of fair and equitable treatment, within the meaning of subsection (5) of Section 115 of the States Reorganization Act, 1956. The aforesaid fair and equitable treatment was, with reference to the posts of Assistant 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, als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 2 SCR 186, laying down that the Central Government has been constituted to be the final authority in the matter of integration of services under sub-section (5) of Section 115 of the Act. The matter of equation of posts is purely an administrative function. It has been left entirely to the Central Government as to how it has to deal with these questions. The Central Government had established an Advisory Committee for the purpose of assisting in the proper consideration of the representations made to it. There is nothing in Sections 115 to 117 of the 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 the Central Government. Perhaps, the only question the court can enquire into is whether the four principles agreed upon at the Chief Secretaries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Committee, directed that the inter se seniority should be fixed taking into account continuous service in the equated grade only subject to the inter se seniority of the officers coming from the several integrating regions. Upon that basis, the State Government by its Resolution dated September 10, 1960, rightly modified Notes 3 and 6 of its 1957 Resolution and directed that the seniority as on November 1, 1956 of ASTOs from Madhya Pradesh and Hyderabad be fixed above the persons in the cadre of 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 afor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s., (1998) 4 SCC 598. In the said judgment, this Court considered the validity of the notification dated 3.2.1987, which had resulted in the constitution of a Central Labour Service, by a merger of three existing cadres. According to the appellant before this Court, the three cadres which were sought to be amalgamated, had different statutory functions, different 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, that the merger of the three cadres was in violation of Articles 14 and 16 of the Constitution of India. This Court having 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Officers prior to 1980. The parity has come about in 1980 and hence Regional Labour Commissioners holding such posts on or before 2-3- 1980 have been placed above Senior Labour Officers. 18. The seniority rules have thus been carefully framed taking all relevant factors into consideration. The respondents have also pointed out that as a matter of fact, by reason of the merger, the appellant has not, in fact, suffered any prejudice and he has also received promotions. 19. However, it is possible that 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 gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and duties relating to computer applications. The deficiencies in the two cadres sought to be merged, were sought to be overcome, by subjecting the members of the two cadres to different examinations, 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 that matter, the qualifications prescribed for the posts. On account of the aforesaid, by and large similarity, we are satisfied, that the merger of the cadres, and the determination of the inter se seniority on merger, were justifiably determined, on the basis of the different pay-scales of the cadres merged, under 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 superi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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