UNION OF INDIA REP. BY THE SECRETARY AND CHIEF COMMISSIONER OF CENTRAL EXCISE, BANGALORE ZONE Vs. SRI CHIKKANNAPPA

JUDGEMENT

(1.) THE order of the Central Administrative Tribunal ('CAT' for short) dated 30.3.2012 in O.A. No. 307/2009 is questioned in these writ petitions by the Union of India. The records reveal that the respondent was appointed as 'Sepoy' in the Department of the 2nd petitioner on 20.2.1974. Subsequently, by the order dated 28.9.1988, he was appointed as Lower Division Clerk ('LDC' for short) from the grade of Sepoy vide Establishment Order No. 129/88. He appeared for the departmental examination for getting promotion to the post of Upper Division Clerk ('UDC' for short) in the year 1991. He was declared passed in the departmental examination for promotion to the post of UDC on 21.10.1991. Thereafter the respondent was reverted to the grade of 'Sepoy' alongwith others by the order dated 20.5.1994. Till that date i.e., till 20.5.1994, the respondent was working as LDC. Questioning the order dated 20.5.1994 reverting him to the post of 'Sepoy' alongwith others, the respondent approached CAT. The CAT by order dated 24.3.1995 ordered for retention of the respondent in LDC grade on adhoc basis by upgrading the Grade -D post to the level of LDC until he became entitled for appointment as LDC on regular basis. The respondent gave a representation requesting the department to promote him to the higher grade of UDC since he has already passed the departmental examination for promotion to the post of UDC in the year 1991 itself. According to him, since he has passed the departmental examination for UDC, it is deemed that he has passed the departmental examination of LDC. However the respondent was once again appointed as LDC on regular basis w.e.f. 1.7.1995 under seniority quota. On repeated representations/approaching the Tribunal, the date of regular appointment to the grade of LDC under the examination quota was modified to 7.9.1995 as per the order dated 2.4.4.2009. The respondent aggrieved by the Establishment Order No. 43/2009 dated 24.4.2009 submitted a representation seeking appointment to the grade of LDC w.e.f. the date of passing of the departmental examination i.e., 21.10.1991 and also sought for consequential benefits therefrom. The said representation dated 4.6.2009 came to be rejected, which was assailed by the respondent before the CAT in O.A. No. 307/2009. After hearing the said application, the same came to be allowed.

(2.) IT is not in dispute that the respondent was appointed as LDC on 28.9.1988 from the grade of Sepoy. He continued to be in the post of LDC till 20.5.1994. In the meanwhile, the respondent has passed departmental examination for being promoted to the post of UDC on 21.10.1991. If the post of UDC was available on 21.10.1991, the respondent would have been promoted to the post of UDC thereof. But it seems the respondent was not promoted to the post of UDC, may be for valid reasons. However it is relevant to note here itself that though the respondent has passed departmental examination for being promoted to the post of UDC, he has not passed the departmental examination relating to LDC. Since the respondent has passed the departmental examination pertaining to the post of UDC, the Tribunal is justified in concluding that it may not be necessary to pass the departmental examination of LDC.

(3.) As is clear from the Establishment Order No. 43/2009 dated 24.4.2009, the representation filed by the respondent was considered by the Board as per the order of the CAT in O.A. No. 348/2007 and the request of the respondent was accepted to certain extent. The Review Committee which met on 17.4.2009 considered the respondent for appointment to the post of LDC under the examination quota earmarked for Group -D staff as per the date of eligibility determined with reference to the date on which he passed the departmental examination for the post of UDC; which means the department has taken the decision to consider the case of the respondent for appointment to the post of LDC (pre -cadre restructure) under examination quota with reference to the date on which he passed the departmental examination to the post of UDC. Admittedly, the respondent has passed the departmental examination relating to UDC on 21.10.1991. Thus it is amply clear that the department has taken decision to appoint the respondent to the post of LDC w.e.f. 21.10.1991. Inspite of the same, the very order dated 24.4.2009 strangely declared that the respondent is regularized in the grade of LDC w.e.f. 7.9.1995. Such conclusion by the department is without any basis. The department was not justified in regularizing the services of the respondent w.e.f. 7.9.1995, more particularly when the order dated 24.4.2009 specifically discloses that the appointment of the respondent to the post of LDC shall be with reference to the date on which he has passed the departmental examination for the post of UDC i.e., 21.10.1991. In this view of the matter, the Tribunal is justified in concluding that the date of appointment of the respondent to the post of LDC should be taken as 21.10.1991 and not 7.9.1995. Since the order of the Tribunal is justified, no interference is called for.