Mr. Ajay Kumar Tripathi, J. (Oral) - Heard learned counsels for the parties.
2. Petitioners belong to the cadre of Clerks in the Excise Department. They earned their promotion on the post of Sub-Inspector of Excise, by virtue of undergoing the departmental examination and qualifying therein.
3. Besides the petitioners, the private-respondents in the present writ applications, i.e., Respondent Nos. 3 to 8, who are represented through two set of counsels, have also earned their promotion as Sub-Inspectors from the post of ASI. The clash of interest has begun thereafter relating to seniority and the position in the gradation-list.
4. The promotions were granted to both set of people as far back as on 20.10.2004. The relevant notifications are Annexure-8 and 9 to the writ application.
5. After the issuance of the orders of promotion, a provisional seniority list was notified in the year 2008 itself, a copy of which is Annexure-10. In the said provisional gradation-list, names of the petitioners figure over and above the names of the private-respondents. That position continued as such till Annexure-14 came to be issued as well as the so called final gradation-list, dated 25.03.2015, contained in Annexure-15, was notified. Petitioners have, therefore, filed the writ application for quashing of the gradation-list to the extent they have been shown junior to the private-respondents.
6. The submission of learned counsel for the petitioners is that the decision to place these petitioners lower than the private-respondents is an unacceptable position, factually and legally, because in terms of a notification issued by the Department of Personnel, as far back as on 26th of August, 1972, persons who were earning higher pay and salary than those, who were equivalently placed and have earned promotions together, will rank higher, if they join the cadre by virtue of promotion.
7. According to the counsel for the petitioners, the relevant provision, which comes into play is as under :
"3. (iv) ;fn inkf/kdkjh ,d gh le; fdUrq fofHkUu lsokvksa ls fdlh lsok esa izksUur fd;s tkrs gSa rks mudh vkilh ojh;rk fuEufyf[kr fl)karksa ds vuqlkj fu/kkZfjr dh tkrh gSA
x & ;fn ,slk dksbZ ;ksX;rk dze fu/kkZfjr ugha fd;k x;k gks rks ftl O;fDr dks vf/kd osru feyrk gks ;k ftls fuEu inksa ij ftuls og izksUur fd;k x;k gks mPp osrueku esa osru feyrk gks ml O;fDr ls ftls de osru feyrk gks ;k fuEu osrueku esa osru feyrk gks] ojh; ekuk tk,sxkA ;fn mlds osrueku leku gks] rks ftl O;fDr dks vf/kd osru feyrk gks mldk LFkku nwljs ls mij ekuk tk,sxkA emphasis mineA ;fn ,sls nks O;fDr fofHkUu lsokvksa ds leku osrudky eku esa ,d gh izdze ij osru ikrs vk jgs gksa izksUur gksus ij mudh ojh;rk dk fu/kkZj.k mez ds vuqlkj fd;k tk,sxkA"
8. Keeping in mind the above provision, which has been applied universally in such matters, petitioners had been rightly shown to be senior to the private-respondents right from the year 2008 till they decided to alter the situation for the first time in the year 2014 and then finally in the year 2015 by the notification under challenge.
9. For the purposes of understanding the two rival submissions and the reason for issuance of Annexure-15, the Court decided to get into the original rule relating to such recruitment. Admitted position is that the relevant rule is Notification No. E-5834, dated 3rd of July, 1954. This Rule has been notified under Article 309 of the Constitution of India. A reading of the said Rule indicates that recruitment on the post of Sub-Inspector of Excise are required to be made by three methods. One is by direct appointment, the other is by providing avenues for promotion to the selected Assistant Sub-Inspectors of Excise and to Excise Clerks, as well, below the age of 35 years. So far as Assistant Sub-Inspectors of Excise are concerned, the vacancies had been limited to 25 per cent. Subsequently it was amended to 30 per cent. For the Clerks and other menials to the extent of 10 percent.
10. On a reading of Rule 1 with Rule 5, there is no iota of doubt that the promotion of ASIs or Excise Clerks is a case of promotion and not appointment. For further clarity, the Court would like to reproduce Rule 5, which is as under:
"5. In making appointment by promotion of Assistant Sub-Inspectors of Excise and Excise clerks to be Sub-Inspectors the Commissioner of Excise shall select only officers of exceptional merit and possessing an adequate knowledge of English and Hindi, provided that such Assistant Sub-Inspectors of Excise and Excise Clerks as have been promoted to the rank of Sub-Inspectors but have not been confirmed, unless such Assistant Sub-Inspectors or clerks have passed the departmental examination mentioned in the proviso to sub-rule (a) of rule 3."
11. The stand of the private-respondents as well as the State is that the relevant circular with regard to decision of seniority of such kind will not be 3 clause (iv) (ga), but 3 (i) of 26.08.1972 notification. Those, who have been appointed earlier and have continued to hold post as ASIs, are required to be given seniority over those, who have been ''appointed'' on the post of Sub-Inspectors of Excise. The initial notifications, showing the petitioners as seniors had to be rectified after the receipt of objections from the private-respondents. That is how Annexure-14 and 15 came to be issued.
12. The State in its counter affidavit has taken a stand that the situation has to be understood by reading the amended provision and the difference in the two notifications, one in Hindi and other in English. In one notification it talks of promotion, whereas in the other notification it talks in terms of appointment by promotion. The amendment, dated 31.03.1975 has been annexed as Annexure-A.
13. Unfortunately, the whole edifice of the case was built up on the amended version to the original Rule. The amendment was with a limited object and purpose in the sense that by virtue of this amendment, besides the Excise Clerks, even Routine Clerks, Typist, Lower Division Assistants and other Ministerial Officers of Excise Commissioner''s Office were allowed to participate in the examination for promotion to the post of Sub-Inspector of Excise.
14. By reading Rule 5, no ambiguity emerges. The original rule provides for a channel of promotion. It is not a case that the subordinate staff, who have been given quota of 10 per cent for such promotion are being ''appointed'' on the post of Sub-Inspector, for the first time after passing of the examination. It is cannot be treated as a case of ''appointment''. It is a case of promotion. In fact, the case of the petitioners would be squarely covered by what the Hon''ble Supreme Court had to say in the case of Union of India and others v. Pushpa Rani and other analogous case, reported in 2008 (9) SCC 242. Since the counsel for the petitioners relies on paragraph 31, 32, 33 of the said decision, which does explain such situation, the Court gets tempted to reproduce those paragraphs as well.
"31. In legal parlance, up gradation of a post involves the transfer of a post from the lower to the higher grade and placement of the incumbent of that post in the higher grade. Ordinarily, such placement does not involve selection but in some of the service rules and/or policy framed by the employer for up gradation of posts, provision has been made for denial of higher grade to an employee whose service record may contain adverse entries or who may have suffered punishment � D.P. Upadhyay v. N.R. Baroda House.
32. The word "promotion" means "advancement or preferment in honour, dignity, rank or grade". "Promotion" thus not only covers advancement to higher position or rank but also implies advancement to a higher grade. In service law the expression "promotion" has been understood in the wider sense and it has been held that "promotion can be either to a higher pay-scale or to a higher post" - State of Rajasthan v. Fateh Chand Soni.
33. Once it is recognised that the additional posts becoming available as a result of restructuring of different cadres are required to be filled by promotion from amongst the employees who satisfy the conditions of eligibility and are adjudged suitable, there can be no rational justification to exclude the applicability of the policy of reservation while effecting promotions, more so because it has not been shown that the procedure for making appointment by promotion against such additional posts is different than the one prescribed for normal promotion. In Fateh Chand Soni case this Court interpreted the provisions contained in the Rajasthan Police Service Rules, 1954, which regulate appointment to the selection scale in the service and held that such appointment constitutes promotion. The Court then considered two earlier judgments in Lalit Mohan Deb v. Union of India and Union of India v. S.S. Ranade and declared that the High Court was in error in holding that appointment to the selection scale does not constitute promotion."
15. Keeping in view the rule as well as the decision of the Hon''ble Apex Court as well as the manner in which these petitioners have earned their right for such promotion, it is not a case of fresh appointment as such on the post of Sub-Inspectors of Excise but a case of promotion through yet another channel or from cadre of subordinate staff such as Clerks etc. Since there is no dispute that some of them earned higher salary than the private-respondents as ASIs, the right interpretation was given by the respondents in publishing the earlier seniority list and the petitioners continued to be shown senior to the private-respondents in all those notifications till finally it was undone or redone, when Annexure-15 came to be issued.
16. Annexure-15, therefore, is quashed.
17. Writ application is allowed. Let the respondents re-notify the seniority list, accordingly.
