V.V.S. Rao, J
1. Respondent Nos.1 to 4 field OA No. 1072 of 1995 before the Central Administrative Tribunal, Hyderabad Bench, (hereinafter referred to as 'the Tribunal') praying for a direction to the appellants herein to review all the promotions made to the post of Inspector of Central Excise and Customs, taking into consideration the seniority in the substantive cadre of UDC, by declaring the decision of the appellants contained in Memo No.11/ 26/5-95 CS, dated 20-7-1995, issued by appellant No.2 as illegal, arbitrary and unconstitutional. The Tribunal allowed the OA and directed the appellants to adhere to the Recruitment Rules in force as on the date of promotion to the post of Inspector of Central Excise and Customs and review the list of promotions already made. Feeling aggrieved by the judgment of the Tribunal, dated 3-4-1988, the Central Board of Excise and Customs, New Delhi, and the Commissioner, Central Excise and Customs, Hyderabad, have filed this writ petition seeking judicial review of the judgment of the Tribunal. The facts necessary, in brief, may be stated as follows:
The Post of Inspector of Central Excise and Customs is governed by Central Excise and Land Customs Department Group-C (Recruitment) Rules, 1979 (hereinafter referred to as the 'Recruitment Rules'). 75 per cent of the posts of Inspectors are recruited by directed recruitment and 25 per cent of the posts are recruited by way of
promotion from the feeder category of UDCs with five years service, and Stenographers (Senior Grade). Women Searchers with seven years experience and Draftsmen with seven years service in the Grade are also eligible for being promoted to the post of Inspector. There is no other feeder category validly recognised for filling up the post of Inspector by promotion.
2. The IV Pay Commission recommended for upgradation of one-third posts of UDCs in Customs and Central Excise to that of Tax Assistants. By notification dated 22-9-1986, the Government of India accordingly constituted a Grade of Tax Assistants, as ministerial ex-cadre posts. UDCs who rendered minimum service of three years and subject to their passing the qualifying test conducted for the post of Income Tax Inspectors were posted as Tax Assistants. By an administrative order dated 5-8-1998, the Government of India decided that Tax Assistants will be eligible for promotion to the Grade of Inspector of Central Excise along with UDCs and other feeder posts. By the said communication, it was also decided that Tax Assistants would be placed en bloc above the UDCs in seniority. By another administrative order dated 30-1-1989, the Government of India clarified that though Tax Assistants are eligible for being promoted to the posts of Inspectors they will not be placed en bloc above the UDCs, and their seniority, as UDCs will only be taken into account. That is to say, among the Tax Assistants, the seniority in the category of UDCs will be counted. However, insofar as seniority of Tax Assistants and UDCs is concerned, the principle that Tax Assistants shall be placed en bloc above the UDCs was reiterated in the administrative order dated 30-1-1989. It is also necessary to refer to para (ii) of administrative order dated 5-8-1988, which reads: Tax Assistants with 2 years service in the grade or with 5 years total service in
the grades of UDC and Tax Assistant, if any, taken together will be eligible for promotion to the grade of Inspector of Central Excise. Other categories of officers e.g., Stenographer, Women Searcher, Draftsman etc., will also be eligible for promotion as Inspector of Central Excise as provided in the Recruitment Rules.
3. A similar guideline was also issued in para (i) of the communication dated 30-1-1989, which reads:
Tax Assistants will continue to be eligible along with UDCs and Stenographers Grade-III etc., for promotion to the grades of Inspector of Central Excise and DOS (L.II) and the criteria of 2 years service as Tax Assistant and 5 years service as Tax Assistant and UDC put together may be adopted. But in the consideration list for promotion to the grade of DOS (L.II) Tax Assistants will not be placed en bloc above UDCs and their seniority, as UDcs only shall be taken into account.
4. The respondents wee appointed as UDCs in 1990. They became Tax Assistants in 1994. When the appellants called for applications from suitable persons to fill up the posts of Inspectors by promotion, respondents submitted their applications. The appellants did not consider their applications on the ground that they were junior in the category of Tax Assistants to several other persons and they do not come within the zone of consideration for promotion as Inspectors. The respondents therefore made representations to the appellants requesting to call them for interview for consideration of their claims for promotion to the post of Inspectors. The Claim of the petitioners was rejected by the communication dated 20-7-1995, which reads: Your request for catling for interview for promotion to the cadre of Inspector taking seniority in the cadre of UDCs cannot be
accepted to, in terms of Ministry's F. No.A-26011/10/86-Ad.II-A (PC) dated 30-1-1989 para -l(ii) for consideration for promotion to the cadre of Inspector, Tax Assistant being on a higher scale will be placed en bloc above the UDCs in the seniority.
5. The same was challenged before the Tribunal. Before the Tribunal, the appellants' contention was that the non-cadre posts of Tax Assistants wee filled up by promotion by following a system of selection, based on an examination amongst UDCs who had completed three years of service and had passed the departmental examination. As per the communications dated 5-8-1988 and 30-1-1989, Tax Assistants have to be placed en bloc over and above the UDCs, and therefore, there is justification to ignore the juniors who have not come up within the zone of consideration. It was also contended that even in the absence of any Rules making Tax Assistants as a feeder category for promotion to the post of Inspector, in view of the two communications issued by appellant No.1, Tax Assistants could be considered as a feeder category.
6. The Tribunal rejected the contentions of the appellants and allowed the OA of the respondents in the following terms:
Rule framed under Article 309 of the Constitution is sacred. No executive order can supersede the order passed under the said Article of the Constitution. Mere issue of execulive order do not give any right to the respondents to supersede the Recruitment Rules framed under Article 309 of the Constitution and adhere to the executive order issued in that connection. Hence, we do not agree with the principles laid down in the executive order for fixation of seniority of Tax Assistants and UDCs for the purpose of promotion to the Post
of Inspector of Central Excise. Hence, we set aside the impugned order of the respondents dated 20-7-1995 and direct the respondents to adhere to the Recruitment Rules in force on the date of promotion to the post of Inspector of Central Excise and review the list already made.
7. The learned standing Counsel for the Central Government submits that pending amendment to the Recruitment Rules, the Department made Tax Assistants eligible for promotion to the post of Inspector of Central Excise, and there is no infirmity in considering the cases of the Tax Assistants as eligible for promotion to the post of Inspectors. He also submitted that the post of Tax Assistants is a post vested with higher responsibilities and higher pay scale, and if the seniority in the category of UDCs is counted, it would result in absurdities.
8. The learned Counsel for the respondents submits that the Recruitment Rules, 1979 are the Rules framed under proviso to Article 309 of the Constitution of India, and therefore, the administrative orders dated 5-8-1988 and 30-1-1989 cannot supplant the statutory provisions. Strong reliance is placed on the judgments of the apex Court in Sr. Superintendent of Post Office and another v. Izhar Hussain, , R.S. Ajara and another v. State of Gujarat, 1997 SCC (L&S) 851, P. Sadagopan and others v. Food Corporation of India, Zonal Office, South Zone, 1997 SCC (L&S) 895, and A.K. Bhatnagar v. Union of India, 1991 (1) SLR 191. It is further submitted that in Income Tax Department, same cadre structure exists, and when Union of India considered the seniority in the category of UDCs also, the Supreme Court in Union of India v. Syed Mohd. Raza Kazmi, , upheld such a move. The learned Counsel also placed reliance on para (ii) and para (i) of the administrative orders dated 5-8-1988
and 30-1-1989 in support of his contention that service in the category of UDCs is relevant while reckoning the seniority of Tax Assistants for the purpose of promotion to the post of Inspector of Central Excise.
9. The short question that arises for consideration is whether the appellants were entitled to ignore the seniority of the respondents in the category of UDCs while considering the claims of Tax Assistants and UDCs for promotion to the post of Inspector of Central Excise under the Recruitment Rules?
10. It is not denied that till date the post of Tax Assistant is not a feeder category for promotion to the post of Inspector. It is also not denied that Tax Assistant is a non-cadre post, and UDCs who fulfill certain conditions only are posted as Tax Assistants. We have referred to two administrative orders dated 5-8-1988 and 30-1-1989. According to these orders, Tax Assistants with two years of service in the Grade or with five years of total service in the Grade of UDC and Tax Assistants, if taken together will be eligible for promotion to the post of Inspector of Central Excise. That means, if a Tax Assistant falls short of five years of total service, he can count his service in the Grade of UDC. In this background, we fail to understand as to how the appellants can ignore the service of the respondents in the Grade of UDC when the same can also be counted for reckoning the five years cumulative service in the Grades of UDC and Tax Assistant as per their own administrative orders dated 5-8-1988 and 30-1-1989. To our mind when the two administrative orders lay down that Tax Assistants will be placed en bloc above the UDCs, it only means that among Tax Assistants and UDCs in the preparation of seniority list of UDCs, those UDCs who are holding the post of Tax Assistant will be placed above the UDCs. But when it comes to reckoning the inter se seniority of Tax
Assistants, the service in the Grade of UDCs of each of the Tax Assistants cannot be ignored. If that be so, para (ii) and para (i) in the administrative orders dated 5-8-1988 and 30-1-1989 would have been couched in a different language. Therefore, we must hold that the impugned order rejecting the applications of the respondents on the ground that they were junior in the category of Tax Assistants cannot be sustained.
11. In Syed Mohd. Raza Kazmi's case (supra), Tax Assistants i.e., Kazmi and others approached the Central Administrative Tribunal contending that Tax Assistants should be treated en bloc as a cadre senior to UDCs and should not be made to wait for promotion to Head Clerks for their turn in seniority as UDC. The Central administrative Tribunal came to the conclusion that the post of Tax Assistant is an intermediary cadre post in higher cadre, and therefore, they cannot be made to lose their rights for occupying the post in higher promotional post, and accordingly suggested three alternatives to Government of India. These were either to introduce quota-rota system or invite options from Tax Assistants who wish to opt for post of Head Clerks or to fill up the post of Head Clerks not by seniority alone, but by open competition where all UDCs with certain minimum years of service are allowed to compete. The Government of India considered the suggestions made by the Tribunal and rejected on the ground that any change in the existing system would create enormous difficulties to the Department if the service in the cadre of UDCs is ignored while promoting the UDCs and Tax Assistants to the post of Head Clerks. The matter again went before the Tribunal at the instance of Tax Assistants. The Tribunal appears to have directed to promote the Tax Assistants treating them as senior in the cadre. The question before the Supreme Court was whether Tax Assistants suffered any injustice or not. The Supreme Court took note of the fact
that the post of Tax Assistant was not envisaged as a feeder post for promotion to the post of Head Clerks, and therefore, in the absence of any amendment to the Rules, Tax Assistants should be treated on par with UDCs. In that premise, it was held that Tax Assistants cannot be treated as senior cadre for the purpose of promotion to the post of Head Clerk. It was further observed: .....It is not for the Administrative Tribunal or for the Courts to interfere with this and to dictate the avenues of promotion which the department should provide for its various employees. The Courts, cannot, we think, direct that TAs should be made a direct feeder post of HCs superior to UDCs. No doubt to the Court will interfere if there is arbitrariness or resultant discrimination. But, after considering very carefully all aspects of the situation, we are unable to say that there is any such arbitrariness or discrimination. We are unable to see any ground for interfering with the policy of the department, which has been in force since 1978.....
12. It is now axiomatic that Rules framed in exercise of power under proviso to Article 309 of the Constitution of India cannot be supplanted by administrative orders. The vacuum in the Rules can be filled up by an administrative order if the same is not ultra vires the statutory Rules. When the statutory Rules provided for certain feeder categories, by an administrative order another feeder category cannot be created 'though for the purpose of removing stagnation and minimising discontent among the UDCs' it is always permissible for the appellants to create a non-cadre post of Tax Assistants within the cadre of UDCs. The distinction between "appointment to service" and "appointment to a post" cannot be lost sight of (see Dingra S.N. v. Union of India, .) All
the Tax Assistants and UDCs are appointed to a service as UDCs, and all of them are entitled to count their service from the date of such appointment to the service. The mere circumstance of getting posted as Tax Assistants, may be after acquiring qualifications, cannot result in denying the entire service as UDC. Such denial of service as UDC for the purpose of reckoning seniority in the category of Tax Assistants would, in our opinion, violate the principles of equality enshrined in Articles 14 and 16 of the Constitution of India. The Tribunal, in our considered opinion, has come to a correct conclusion in rejecting the contention of the appellants herein.
13. For the reasons aforesaid, there is no merit in the writ petition, and it is accordingly dismissed. No order as to costs.