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Thursday, March 26, 2015

seniority dispute amongst employees of the Customs and Central Excise Department. = we would consider the validity of the merger of 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 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. 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 Rules, 2003, and the STA Rules, 2003, the nature and duties of the two cadres were combined. Consequent upon their appointment as Tax Assistants and Senior Tax Assistants, members of the erstwhile ministerial cadre, and members of the cadre of Data Entry Operators, were required to perform both procedural duties 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 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 on the touchstone of Articles 14 and 16 of the Constitution of India. 36. For all the reasons recorded hereinabove, we are satisfied, that the different orders passed by the Administrative Tribunal, and the common order dated 13.4.2007 passed by the High Court, are liable to be set aside. The same are accordingly hereby set aside. The appeals filed by those who moved to the cadre of Data Entry Operators from the ministerial cadre, and were thereupon amalgamated in the cadre of Tax Assistants/Senior Tax Assistants, are allowed. The connected appeals preferred by the Union of India, are also allowed. In the above view of the matter, the authorities shall give effect to Rules 4 and 5 of the TA Rules, 2003 and the STA Rules, 2003, respectively, without any further delay.


                                                                "REPORTABLE"

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NOS. 2485-2490 OF 2010

Dhole Govind Sahebrao & others                     ... Appellants
                                   versus
Union of India & others                                  ... Respondents
                                    WITH
                     CIVIL APPEAL NOS. 2491-2503 OF 2010

Union of India & others                                  ... Appellants
                                   versus
A. Karunanithi                                     ... Respondent
                                    WITH
                        CIVIL APPEAL NO. 2577 OF 2010

Union of India & others                                  ... Appellants
                                   versus
Awadhesh Kumar & others                            ... Respondents
                                    WITH
                       CIVIL APPEAL NO. 10386 OF 2013

Union of India & others                                  ... Appellants

                                   versus
Issac Varghese & others                                  ... Respondents



                               J U D G M E N T

Jagdish Singh Khehar, J.

1.    The present controversy  is  yet  another  seniority  dispute  amongst
employees of the Customs and Central  Excise  Department.   The  controversy
herein has emerged on account of a reconstitution of cadres.  In  the  first
instance, a separate cadre was constituted, out of the existing  ministerial
cadre, for discharging electronic data  processing  responsibilities.   This
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 co-incidental 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  re-amalgamation  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  members   of   the   original
ministerial cadre, were regulated by the Central  Excise  and  Land  Customs
Department Group 'C' Posts Recruitment Rules, 1979 (hereinafter referred  to
as, the 1979 Rules).  Members of the original  ministerial  cadre  regulated
by the provisions of the 1979 Rules were eligible for promotion to the  post
of Inspector (Ordinary Scale) - an executive  cadre  post.   And  thereupon,
even further promotion, in the executive cadre.

3.    Consequent upon the recommendations made by  the  Fourth  Central  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  November,  1986,  the
Government of India decided to introduce the following uniform  pattern  for
Electronic Data Processing Posts:-

|S.No.  |Designation of post      |Pay Scale     |                     |
|       |               Data Entry Operators     |                     |
|1.     |Data Entry Operator      |Rs.1150-1500  |This will be entry   |
|       |Grade 'A'                |              |grade for higher     |
|       |                         |              |secondary with       |
|       |                         |              |knowledge of data    |
|       |                         |              |entry work           |
|2.     |Data Entry Operator      |Rs.1350-2200  |This will be entry   |
|       |Grade 'B'                |              |grade for graduation |
|       |                         |              |with knowledge of    |
|       |                         |              |data entry work or   |
|       |                         |              |promotional grade for|
|       |                         |              |Data Entry Operator  |
|       |                         |              |Grade 'A'            |
|3.     |Data Entry Operator      |Rs.1400-2300  |Promotional Grade    |
|       |Grade 'C'                |              |                     |
|4.     |Data Entry Operator      |Rs.1600-2660  |Promotional Grade    |
|       |Grade 'D'                |              |                     |
|5.     |Data Entry Operator      |Rs.2000-3500  |Promotional Grade    |
|       |Grade 'E'                |              |                     |
|       |Data Processing/Programming Staff                             |
|1.     |Data Processing Assistant|Rs.1600-2660  |Entry grade for      |
|       |Grade 'A'                |              |graduates with       |
|       |                         |              |Diploma/Certificate  |
|       |                         |              |in Computer          |
|       |                         |              |Application          |
|2.     |Data Processing Assistant|Rs.2000-3200  |Promotional Grade    |
|       |Grade 'B'                |              |                     |
|3.     |Programmer               |Rs.2375-3500  |Direct entry for     |
|       |                         |              |holders of degree in |
|       |                         |              |Engineering or       |
|       |                         |              |post-graduation 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 continuation of the aforesaid  office  memorandum  dated  11.9.1989,  the
Government of India issued a further memorandum dated  8.1.1990,  suggesting
job descriptions for various levels of data entry operators and  programming
staff, which could be adopted by  different  ministries/departments  of  the
Government of India, with suitable modifications to  meet  their  individual
requirements.  The suggestions incorporated in  the  annexures  appended  to
the office memorandum dated  8.1.1990,  revealed  five  categories  of  data
entry operators, differentiated and distinguished as under:-
      "1.   Data Entry Operator-A:      1150-25-1500

All types of data preparation and validation  including  alpha-numeric  data
entry, graphic data entry, voice-entry, optical entry etc.,  and  associated
verification, and pre-programmed validation, text processing  etc.,  on  any
type of  machines/equipment/instrument  endowed  with  facilities  for  data
entry and/or preparation for data entry and/or pre-programmed validation  of
entered data including key punching machine, key to magnetic media  machine,
key to optical media  machine,  any  type  of  computer/EDP  equipment,  any
computer based equipment/computer based instrument/computer based online  or
real time systems/computer network based systems.

      2.    Data Entry Operator-B:      1350-30-1440-40-2200

In addition to those jobs mentioned  for  Data  Entry  Operator-A,  Pooling,
Counting,  Collating,  Coding,   Console   Operation,   assisting   in   the
preparation of Statistics, billing, input/output handling etc., on any  type
of machine/equipment/instrument endowed with facilities for  data  entry  or
preparation for data entry and/or validation of entered  data  as  specified
under the description for Data Entry Operator-A.

      3.    Data Entry Operator-C:

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 alpha-numeric 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  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 validation traction  and  if
necessary to do supporting job of data entry, verification, validation  etc.
depending on exigencies of work."

4.    In order to implement the recommendations made by the  Fourth  Central
Pay Commission, the  Central  Board  of  Excise  &  Customs,  Department  of
Revenue, Ministry of Finance, framed the Electronic  Data  Processing  Posts
(Group 'C' Technical Posts) Recruitment Rules,  1992  (hereinafter  referred
to as, the 1992 Rules).  The aforesaid rules were framed  by  the  President
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  Grade  'A'
appointed at the time of the commencement of the 1992 Rules, would rank  en-
block senior to those appointed after the commencement of the Rules.

5.    Rule 7 of the 1992 Rules authorized, the Central Government  to  relax
any other provision of the rules with respect to any class  or  category  of
persons.  On 2.2.1993, in exercise of the powers conferred  on  the  Central
Government,  the  Central  Excise   Department   permitted   its   erstwhile
employees, to apply for posts of Data Entry Operator Grade 'A',  subject  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 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 Rs.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 Rs.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 promotional post, was in the  pay  scale
of Rs.1400-40-1800-EB-50-2300.   Data  Entry  Operators  Grade  'B'  with  3
years' regular service in the grade, were considered eligible for  promotion
to the post of Data Entry Operator Grade 'C'.  The schedule appended to  the
1992 Rules provided, that the post of Data Entry Operator  Grade  'C'  would
be filled up  exclusively  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 Rs.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  be  made  exclusively  by  promotion,  failing  which,  on  transfer  by
deputation.

7.    A perusal of the cadre of posts evolved under  the  1992  Rules  would
reveal, that the Customs and Central Excise Department created a  four-level
cadre of Data Entry Operators, i.e. Grades 'A', 'B', 'C' and 'D'.  This  was
in contradistinction  to  the  five-level  cadre  of  Data  Entry  Operators
suggested in the deliberations carried out by the Government  of  India  (as
already noticed above).  A perusal of the 1992 Rules further  reveals,  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 to  the  post
of Inspector (Ordinary Scale) in the executive cadre.   And  therefore,  not
eligible for any onward promotion in the executive  cadre.   Accordingly  it
is inevitable to conclude, that after the promulgation of  the  1992  Rules,
the Customs and Central  Excise  Department  comprised  of  a  separate  and
distinct ministerial cadre, as also, a separate and distinct cadre  of  Data
Entry Operators.

8.    The factual position depicted  in  the  pleadings  filed  before  this
Court reveals, that throughout India only  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 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 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
conferred on him by the proviso  to  Article  309  of  the  Constitution  of
India, framed two sets of rules  for  the  Customs  and  Excise  Department,
namely, the Central Excise and Customs Department Tax Assistant  (Group  'C'
Post) Recruitment Rules, 2003 (hereinafter referred to  as,  the  TA  Rules,
2003) and the Central Excise and Customs  Department  Senior  Tax  Assistant
(Group 'C' Post) Recruitment Rules, 2003 (hereinafter referred  to  as,  the
STA Rules, 2003).  In order to understand the  re-merger/re-amalgamation  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 post of Upper Division Clerk and Data Entry Operator Grade A  on
the commencement of these rules shall deemed to have been appointed  as  Tax
Assistant under these rules and the service rendered by such persons in  the
respective posts before commencement of these  rules  shall  be  taken  into
account as regular service rendered on the post of  Tax  Assistant  for  the
purpose of promotion etc.

(2)   The person holding the post of Data Entry Operator  Grade-A  appointed
under these rules as Tax Assistant shall, within 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
authority, be deemed to have been promoted with  effect  from  the  date  of
passing such examination on the post of Tax Assistant.

(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  postulates,  that
Upper Division Clerks and Data Entry Operators Grade 'A',  would  be  placed
en-block senior to others appointed as Tax  Assistants,  and  further,  that
their inter-se seniority would 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 cadre of Tax Assistants under the TA Rules, 2003.

10.   While deliberating on the TA Rules, 2003, it  is  also  imperative  to
notice, that Rule 5 of the TA  Rules,  2003  provided  for  the  methods  of
recruitment, age limits and other qualifications,  for  appointment  to  the
post of Tax Assistant.  The details of the aforesaid particulars  are  found
in the schedule appended to the TA Rules, 2003.   A  perusal  of  the  above
schedule reveals, that 90% of the appointments  made  to  the  post  of  Tax
Assistant were to be by 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 and passed  the
Departmental examination with knowledge of typing in Hindi or English  at  a
speed of 25 wpm and 30 wpm respectively."

It is apparent from the  perusal  of  Rule  5,  coupled  with  the  schedule
appended to TA Rules, 2003, that  the  initial  merger  of  the  ministerial
cadre and the cadre of Data Entry Operators was made, against  the  post  of
Tax Assistants.  In sum and substance, therefore, irrespective of  the  post
(in ministerial or Data Entry Operators' cadre) occupied, the  lowest  level
of amalgamation 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  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
shall be placed below the Assistant and Data Entry Operator  Grade  'C'  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 category shall not be disturbed.

(iv)   Upper  Division  Clerk  with  special  pay  shall  be  placed   below
Assistant; Data Entry Operator Grade 'C', Data  Entry  Operator  Grade  'B',
Tax Assistants.

(v)   The present employees would  be  required  to  pass  the  required  or
suitable departmental examination, as specified by the Competent  Authority,
from time to time, in Computer application and  relevant  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 of the  STA  Rules,  2003  also
expressly provided for the manner in which the above merged posts  would  be
ranked in the integrated cadre  of  Senior  Tax  Assistants.   The  inter-se
ranking was provided for as under:-

(i)   Assistants and Data Entry Operators Grade 'C' were  placed  above  all
other posts which constituted the cadre of Senior  Tax  Assistants,  on  the
promulgation of the STA Rules, 2003.  This  was  purportedly  sought  to  be
done, as is evident from Rule 5(ii) of the  STA  Rules,  2003,  because  the
posts of Assistant and Data Entry Operator Grade 'C' were in the  pay  scale
of Rs.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  actually
appointed in the pay scale of Rs.5000-8000, on regular basis.

(ii)  In the same fashion as Assistants and Data Entry Operators Grade  'C',
Rule 5(iii) of the STA Rules,  2003  provided,  that  Data  Entry  Operators
Grade 'B' and Tax Assistants, who were earlier placed in the  pay  scale  of
Rs.4500-7000, and thereafter placed in the  higher  scale  of  Rs.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 Clerk were placed at the bottom  of
the cadre of Senior Tax Assistants, at 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 appointed as  Senior  Tax  Assistants,  at  the
initial constitution of the aforesaid cadre,  under  the  STA  Rules,  2003,
would be required to pass departmental examinations, so as  to  achieve  the
proficiency required in discharging duties relating to  the  application  of
relevant procedures, as also, with reference to computer applications.

13.   It is in the background of the aforesaid factual and  legal  position,
that we would venture to adjudicate upon the  controversy  raised  in  these
connected civil appeals.

14.   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
30.12.2003 was passed, while disposing of  Original  Application  nos.  558,
538 and 909 of 2003, and a common order dated  30.4.2004  was  passed  while
disposing of Original Application nos. 462 and 639 of 2003.   Another  order
dated 24.6.2004 was passed, while  disposing  of  Original  Application  no.
1025 of 2003.  And likewise, an  order  dated  2.8.2004  was  passed,  while
disposing of Original Application no. 1150 of 2003.  And finally,  an  order
dated 14.10.2004 was passed while disposing of Original Application  no.  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  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 2004; 12236 and 9286 of 2005; 17258 and 17508  of  2006;  and  WPMP
No. 864 of 2004.  The instant challenge was  raised  at  the  hands  of  the
Union of India, as also, the members of the cadre of Data  Entry  Operators,
who were merged into the cadre of Tax Assistants and Senior Tax  Assistants,
consequent upon the promulgation of the TA Rules, 2003 and STA Rules,  2003.
 All the above mentioned writ petitions were disposed of by the  High  Court
of Judicature at Madras (hereinafter referred to 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 is  only  the
rules relating to the fixation  of  inter  se  placement  of  the  erstwhile
ministerial cadre staff and the  erstwhile  technical  cadre  staff  in  the
restructured  cadre  which  are  challenged  before   the   Tribunal.    The
contesting respondents, who are presently working as Preventive Officers  on
ad hoc basis, claim that for determining  the  inter  se  placement  of  the
ministerial cadre staff and the technical cadre staff  in  the  restructured
cadre, the date of initial  appointment  in  the  services  of  the  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 adjudicating upon the  propositions  canvassed  before  it,  the  High
Court in paragraph 35 of  the  impugned  judgment  and  order,  observed  as
under:-
"35.  We have no quarrel with the proposition of law enunciated by the  Apex
Court. But, in the cases on hand, all  the  parties  emerge  from  the  same
cadre of LDC and only by virtue of option, some parties have  opted  to  the
post of Data Entry Operators and by virtue of the 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  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 blocked their further  promotional  avenues,  by  placing
persons like Data Entry Operators, who have already enjoyed  the  fruits  of
promotion more than once, over and above  LDCs/UDCs/Tax  Assistants  in  the
inter se seniority list.  It  is  to  be  mentioned  that  promotion  is  an
incidence of service.
xxx              xxx              xxx              xxx

43.   A forcible argument was  advanced  on  the  part  of  the  respondents
demonstrating how by virtue of the impugned Rules, the LDCs,  who  have  not
opted to be posted as Data Entry Operators were severely 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 have  created  promotional  avenues  for
the respondents having regard to its constitutional  obligations  adumbrated
in Articles 14 and 16 of the Constitution of India.


44.    Therefore,  the  official  respondents  would  not  be  justified  in
blocking the promotional avenues of the respondents/UDCs or Tax  Assistants,
as the case may be, without framing proper  rules  and  framing  faulty  and
arbitrary Rules like the ones in dispute. Promotion, as  held  by  the  Apex
Court is a condition and incidence of service and as 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  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 guidelines  issued  by
the Apex Court regarding fixation of inter se seniority in  such  cases  and
has arrived at an unerring conclusion to hold that the  seniority  principle
stipulated in the impugned notifications is unfair to the ministerial  cadre
of the Department and considering any other date than the  date  of  initial
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 of the consideration applied  in  the  adjudication
of the controversy.  We shall, at the first instance, venture  to  determine
whether the propositions applied for the determination  of  the  controversy
by the Administrative Tribunal and by the High  Court,  were  in  consonance
with the law declared by this Court.

17.    It  would  be  relevant  to  mention,  that  the  disputed  issue  of
seniority, came  to  be  determined  in  the  impugned  orders,  by  placing
reliance  on  Om  Prakash  Sharma's  case  (supra).    To   understand   the
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  staff  and  a  common  seniority  list  was
introduced in respect of all the four cadres which were prior  to  September
1956 on a  common  seniority  list.  Pursuant  to  the  amalgamation  common
seniority list (Annexure 6) was drawn up. It purports  to  be  the  combined
seniority  list  of  the  Railway  Administration,  Electrical   Department,
Central Railway, Jhansi. Validity of the seniority list is impugned in  this
appeal. In this seniority list Appellant 1 is at Serial No. 3,  Appellant  2
is at Serial No. 4, and Appellant 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,
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  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  Bench  of  the  High
Court by a short cryptic order rejected the  writ  petition  observing  that
the Court did not find any merit in the writ petition. Hence this appeal  by
special leave.

3.    The appellants have  an  iron-clad  case.  The  facts,  not  disputed,
[pic]to summarise briefly are that under the Divisional Electrical  Engineer
there were three separate  departments  under  his  administrative  control.
Members of the staff of  the  three  departments  were  borne  on  a  common
seniority list. In other words they were 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 each other which resulted in each unit  having  its  own
seniority list and the common seniority  list  became  irrelevant  from  the
date  of  the  trifurcation.  The  Unit  No.  2  called  the  workshop   was
amalgamated with the office of the Chief Electrical Engineer,  Bombay.  That
is not controverted. Respondents 3  to  6  belonged  to  the  administrative
staff  in  the  department  styled  as  the  workshop.  The  result  of  the
trifurcation and amalgamation of the workshop with  the  Bombay  office  was
that the workshop staff including 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
departments under Divisional Electrical Engineer were amalgamated. In  other
words situation ante as on August 31, 1956 was restored, and members of  the
staff were  brought  on  common  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  [pic]of
Article 16 as it would constitute  denial  of  equality  in  the  matter  of
promotion. Therefore, the seniority list drawn up on  a  principle  contrary
to what is discussed  herein  would  be  bad  in  law  and  deserves  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 list  till  31.8.1956.   From
1.9.1956 onwards,  these  three  divisions/departments,  earlier  under  the
singular  control  of  the  Divisional  Electrical  Engineer,  Jhansi,  were
separated  from  each   other   (consequent   upon   the   introduction   of
divisionalization, in the  railways).   These  three  divisions,  therefore,
became three independent departments.   The  clerical  staff  of  the  three
separated departments, came to be placed  in  independent  seniority  lists.
The aforesaid process came to be reversed,  and  the  earlier  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  re-amalgamation,
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  first  endeavour  to
determine whether the legal position declared by this Court  in  Om  Prakash
Sharma's case (supra) could have been applied to the present controversy.

18.   The factual position in Om  Prakash  Sharma's  case  (supra)  reveals,
that  the   employees   whose   inter-se   seniority   dispute   arose   for
consideration, were holding the position  of  clerks,  senior  clerks,  head
clerks and chief  clerks  in  three  divisions  under  the  control  of  the
Divisional Electrical Engineer, Jhansi.  The said three divisions 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, 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   upon
promulgation of the Electronic Data Processing Posts  (Group  'C'  Technical
Posts) Recruitment Rules, 1992, a separate cadre  of  Data  Entry  Operators
came  to  be  created.   Appointment  thereto,  at  the  time   of   initial
constitution of the cadre of Data Entry  Operators,  was  made  out  of  the
original  ministerial  cadre.   The  posts  under  the  1992  Rules,  had  a
different nomenclature,  vis--vis  the  posts  in  the  ministerial  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.  A bifurcation simpliciter would envisage a division of  the
same posts,  as  they  originally  existed,  in  two  separate  units.   The
controversy  adjudicated  upon  in  Om  Prakash  Sharma's  case  (supra)  is
illustrative of a simpliciter  bifurcation  (actually  trifurcation),  where
the cadre posts remained the  same,  but  there  was  a  vertical  division,
whereby the said posts were re-constituted as two (actually three)  separate
cadres.  Thereafter, the cadres were re-amalgamated, so as  to  restore  the
earlier position.  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 (supra) was incorrectly applied, while adjudicating  upon  the
present controversy.

20.   It is also not possible for us to accept,  that  the  promulgation  of
the TA Rules, 2003 and the STA Rules, 2003 can be termed as a process of re-
amalgamation of the erstwhile cadre.  Consequent upon  the  promulgation  of
the above rules, posts from the ministerial cadre (regulated by the  Central
Excise and 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,  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 position which existed, before the  creation  of  the  cadre  of
Date Entry Operators.

21.   At the cost of repetition we  wish  to  reiterate,  that  the  factual
scenario which emerges for determination in the present controversy, is  not
akin to that which had arisen for consideration  before  this  Court  in  Om
Prakash Sharma's case (supra).  Therein, the original cadre which  comprised
of the posts of clerks, senior clerks, head  clerks  and  chief  clerk,  was
trifurcated  and  then  re-amalgamated.   The  re-amalgamated   cadre   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  the  impugned  order  passed  by  the  High  Court.   The
conclusions drawn by the High Court, as have been recorded in  paragraph  46
of the impugned judgment  and  order  dated  13.4.2007,  emerged  out  of  a
consideration which was noticed in paragraphs 38 to 45.  Paragraphs  38  and
43 to 46 of the impugned judgment and order,  have  already  been  extracted
hereinabove.  A perusal of the above consideration reveals,  that  the  High
Court was swayed by the co-incidental prejudice suffered  by  the  erstwhile
members of the 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
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  merit-cum-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  contrast,  the  conditions  of
service of ASTOs from Madhya Pradesh and Hyderabad, at least so far  as  one
stage of promotion above the one held by them before the  reorganisation  of
States, could not be altered without the previous sanction  of  the  Central
Government as laid down in the Proviso to sub-section (7) of  Section 115 of
the Act."

(ii)  Reference may also 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 but  under  subsequent  rules  of  July  30,
1959, 50 per cent of the vacancies were to be filled by  direct  recruitment
and only the remaining 50 per cent were available  for  promotion  and  that
too on divisional basis. The effect of this change obviously  was  that  now
only 50 per cent vacancies in the post of Deputy Collector  being  available
in place of all the vacancies it was to take  almost  double  the  time  for
many other allocated Tahsildars to get promoted  as  Deputy  Collectors.  In
other words it resulted 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
Collectors divisionwise and limiting such promotions to 50 per cent  of  the
total number of vacancies in the posts of Deputy  Collector  was  to  reduce
the chances of promotion available  to  the  petitioners.  It  is  now  well
settled by the decision of this Court in State of Mysore v. G.  B.  Purohit,
1967 SLR 753, that though a right  to  be  considered  for  promotion  is  a
condition of service, mere chances  of  promotion  are  not.  A  rule  which
merely  affect  chances  of  promotion  cannot  be  regarded  as  varying  a
condition 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
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  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. Apparently, after the  coming  into  force
of the order dated December 28, 1965 and  the  Circular  dated  January  20,
1966 promotions  could  not  be  made  just  on  completion  of  two  years'
satisfactory service under the earlier Circular dated November 6,  1962  the
same having been superseded by the later circular.  It  is  further  obvious
that in this view of the  matter  Supervisors  'A'  who  had  been  promoted
before the coming into force of the order dated December 28,  1965  and  the
Circular dated January 20, 1966 stood 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 fall in the same category."

 (iii)      This Court had also declared the position of law, on  the  above
aspect of the matter, in Syed Khalid Rizvi & Ors. v. Union of India &  Ors.,
1993 Supp. (3) SCC 575, wherein a three Judge Bench observed as under:-
"30.  The next question is whether the seniority is a condition  of  service
or a part of rules of recruitment?  In  State  of  M.P.  v.  Shardul  Singh,
(1970) 1 SCC 108, this Court held that the term conditions of service  means
all those conditions which regulate 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 v. Krishna Reddy, 1970 SLR 768, another Constitution Bench held  that
any rule which affects the promotion of a person relates  to  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 same rules to  higher  echelons  of  service.  In  that
arena promotion may be considered to be a  condition  of  service.  In  A.K.
Bhatnagar v. Union of  India,  (1991)  1  SCC  544,  this  Court  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 direct recruitment,  they
were held senior to the promotees.

31.   No employee has a right to promotion but he has only the right  to  be
considered for promotion according to rules. Chances of  promotion  are  not
conditions of service and are defeasible.  Take  an  illustration  that  the
Promotion Regulations envisage maintaining integrity and good record by  Dy.
S.P. of State Police Service as eligibility condition for inclusion  in  the
select-list  for  recruitment  by  promotion  to  Indian   Police   Service.
Inclusion 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  appointed
according to rules. Can 'A' thereafter say that 'B' being far junior to  him
in State Service, 'A' should become senior  to  'B'  in  the  Indian  Police
Service. The answer is obviously no because 'B' had stolen a march over  'A'
and became senior to 'A'. Here maintaining integrity  and  good  record  are
conditions of recruitment and seniority is an  incidence  of  service.  Take
another illustration that the State Service provides - rule  of  reservation
to the scheduled castes and scheduled tribes. 'A'  is  a  general  candidate
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  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  [pic]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
seniority, though,  normally  an  incidence  of  service,  Seniority  Rules,
Recruitment Rules and Promotion Regulations form part of the  conditions  of
recruitment to the Indian Police  Service  by  promotion,  which  should  be
strictly complied  with  before  becoming  eligible  for  consideration  for
promotion and are not relaxable."

(iv)  More recent in time, is the judgment rendered by another  three  Judge
Division Bench in S.S. Bola & Ors. v. B.D. Sardana  &  Ors.,  (1997)  8  SCC
522.  The majority opinion in the above judgment was rendered by Justice  K.
Ramaswamy.  In the process of consideration, he observed as under:-
"145. It is true that 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 vested right. As regards the right to seniority, this  Court
elaborately  considered  the  incidence  of  the  right  to  seniority   and
amendment of the Act in the latest decision in Ashok Kumar  Gupta  v.  State
of U.P., (!977) 5 SCC 201, relieving the need to reiterate all of them  once
over. Suffice it to state that it is settled law that a distinction  between
right and interest has always been  maintained.  Seniority  is  a  facet  of
interest.  The  rules  prescribe  the   method   of   selection/recruitment.
Seniority 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  regarded  as
varying the conditions of service. Chances of promotion are  not  conditions
of service. A rule which merely affects the chances of  promotion  does  not
amount to change in the conditions of service."

Consequent upon the  above  detailed  consideration,  Justice  K.  Ramaswamy
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 conditions of service. However, once  a  declaration
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 subject in  hand,  however,  there  was  no  dissent.   The  conclusions
recorded by Justice G.B. Pattanaik were to the following effect:-
"199. To the said effect the judgment of this Court in the case of State  of
Punjab v. Kishan Das, (1971) 1 SCC  319,  wherein  this  Court  observed  an
order forfeiting  the  [pic]past  service  which  has  earned  a  government
servant increments in the post or rank he holds, howsoever adverse it is  to
him, affecting his seniority within the rank to  which  he  belongs  or  his
future chances  of  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 the direct recruits that the effect of redetermination of  the
seniority in accordance with the provisions of the Act is not only that  the
direct recruits lose a few places of seniority  in  the  rank  of  Executive
Engineer but their future chances of promotion are greatly  jeopardised  and
that right having been taken away the Act must be held to be invalid. It  is
difficult to  accept  this  contention  since  chances  of  promotion  of  a
government servant are not a condition of service. In the case of  State  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 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 (Irrigation Branch)  Class
I Service Rules, 1964 have not been considered earlier by this Court at  any
point of time. One Shri M.L. Gupta was appointed to the  post  of  Assistant
Executive Engineer as a direct recruit on 27-8-1971, pursuant to the  result
of a competitive examination held by the Haryana Public  Service  Commission
in December 1970. The said Shri Gupta was promoted to the post of  Executive
Engineer on 17-9-1976. He made a representation to the State  Government  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  September  1986  the  State
Government fixed the inter se seniority of the said  Shri  Gupta  and  other
members of the Service and Gupta was shown at Serial No. 72.  Two  promotees
had been shown at Serial Nos. 74 and 75. Those two promotees  filed  a  writ
petition challenging the fixation of inter se seniority between  the  direct
recruits and promotees and the High Court  of  Punjab  and  Haryana  by  its
judgment passed in May 1987 quashed the  order  dated  29-9-1986  whereunder
the seniority of the direct  recruits  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.
[pic]6012 of 1986 claiming his seniority at No. 22 instead of 72  which  had
been given to him under the  notification  dated  29-9-1986.  The  promotees
also filed a writ petition challenging the government order dated  24-7-1987
which was registered as CWP No. 5780 of 1987. Both the writ  petitions,  one
filed by the direct recruit, Shri Gupta, (CWP No.  6012  of  1986)  and  the
other filed by the promotees (CWP No. 5780 of 1987) were disposed of by  the
learned  Single  Judge  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 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 proviso to Article 309 of  the
Constitution which has been adapted by the State of Haryana on and from  the
date Haryana was made a separate State  had  not  been  considered  by  this
Court nor has any direction been  issued  by  this  Court.  The  legislative
competence of the State Legislature to enact  the  Act  had  also  not  been
assailed and in our view rightly since the State Legislature has the  powers
under Entry 41 of List II of the Seventh Schedule  to  frame  law  governing
the conditions of service of the 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 regulating the recruitment and the conditions  of  service  until
provision in that behalf is made by or  under  an  Act  of  the  appropriate
legislature under Article 309 main part. In this view  of  the  matter,  the
legislative competence of the State Legislature to enact the legislation  in
question is beyond doubt. The only question  which,  therefore,  arises  for
consideration and which is contended in [pic]assailing the validity  of  the
Act is that under the Act the direct recruits would lose  several  positions
in 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   would   stand
dismissed. The Act 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 promotion  is
not a condition of service. Therefore, in the first instance,  the  Tribunal
will have to spell out as to what was the vested  right  which  had  already
accrued to the respondent and that is taken  away  by  the  Policy  decision
dated 23-4-2010. In this process, other thing which becomes 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--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 suffered  final  supersession,  he  was
not entitled to be seconded permanently to DGQA. This  is  disputed  by  the
respondent. That aspect will have to be decided first. That apart,  even  if
it be so, as contended by the appellants, the appellants have  not  recalled
the permanent secondment order. They have allowed the respondent to stay  in
DGQA maintaining his promotion as Colonel as well, which was given  pursuant
to this secondment. The question, in such circumstances,  that  would  arise
is whether the respondent 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 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 the basis of the fact  that  the  promulgation
of the TA Rules, 2003  and  the  STA  Rules,  2003  was  discriminatory  and
arbitrary with regard to the fixation of the inter se seniority,  since  the
same seriously prejudiced the chances 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 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 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.   In  this  behalf,  the
submission advanced on their behalf was two-fold.  Firstly, that  dissimilar
posts  had  been  equated.   And  secondly,  that  the  equation  of   posts
determined  merely  on  the  pay-scales  attached  to  them,  would  not  be
acceptable in law.

26.   Insofar as the former of the said two contentions  is  concerned,  the
submission was again two-fold.  Firstly, reliance had been placed on Rule  4
of the TA Rules, 2003.  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 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) of Rule 4 of the TA Rules, 2003,  required  a  Data  Entry
Operator Grade 'A', who had come to be appointed as Tax  Assistant,  at  the
initial constitution under the  TA  Rules,  2003,  to  pass  a  departmental
examination within two years of such appointment, failing  which  such  Data
Entry Operator Grade 'A', would not be entitled to  any  further  increment.
Accordingly, the submission advanced at the hands of  learned  counsel  was,
that the aforesaid mandate clearly demonstrated, that a Data Entry  Operator
Grade '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 the post of Upper Division Clerk,  and  as  such,  the  determination  of
inter se seniority for onward promotion regulated by Rule  4(1)  of  the  TA
Rules, 2003, must be deemed to be both arbitrary and discriminatory, 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 whilst  the  deficiency  in  Data  Entry
Operators Grade 'A', was with reference to lack  of  knowledge  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  promulgation  of  the
Electronic Data Processing Posts (Group  'C'  Technical  Posts)  Recruitment
Rules, 1992.  The  creation  of  the  cadre  of  Data  Entry  Operators  was
considered to be imperative, to give effect to the aforesaid  administrative
determination, to computerize the functioning of  the  Customs  and  Central
Excise Department.  According to the learned senior counsel,  on  completion
of the process of  computerization  it  was  felt,  that  for  an  effective
functioning of the Customs  and  Central  Excise  Department,  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,  after  its
computerization.  Therefore, while merger of  above  two  cadres  was  given
effect to, the deficiencies in the two cadres were sought to be  removed  by
requiring them to qualify the prescribed departmental examination.

29.   A similar contention was advanced by learned counsel representing  the
private respondents, on the basis of Rule 5 of  the  STA  Rules,  2003.   We
have already analysed hereinabove the effect of  merger  contemplated  under
Rule 5 of the STA Rules,  2003.   Despite  our  analysis  of  the  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  (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, failing which they  too  would  not
be eligible for any further increment.

30.   Learned senior counsel representing the  Union  of  India,  reiterated
the factual and legal position, as he  had  highlighted  with  reference  to
Rule 4 of the TA Rules, 2003, whilst interpreting Rule 5 of the  STA  Rules,
2003.  Yet again  it  was  pointed  out,  that  on  the  completion  of  the
computerization process, there were deficiencies in  ministerial  cadre,  as
also, in the cadre of Data Entry Operators, and therefore,  at  the  initial
constitution 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 submissions  advanced
at the hands of the learned counsel for the rival parties, on the  basis  of
Rule 4 of the TA Rules, 2003, and Rule 5 of the STA Rules, 2003, it  is  not
possible for us to conclude, that members of either of the two  cadres  (the
erstwhile ministerial cadre, and the cadre of Data Entry Operators)  can  be
treated to be superior to one or  the  other,  on  account  of  the  pointed
deficiency, highlighted by the learned counsel.   It  clearly  emerges  from
the provisions relied upon, that  consequent  upon  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 Rule 4 of the TA Rules, 2003  and  Rule  5  of
the  STA  Rules,  2003,  respectively,  is  devoid  of  any  merit,  and  is
accordingly hereby rejected.

32.   We shall now deal  with  the  second  submission  advanced  before  us
during the course of hearing,  namely,  the  second  contention  noticed  in
paragraph 26 above.  The pointed submission advanced  before  us  was,  that
the equation of posts under Rule 4 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 sub-
section (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, 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 services  was  to  be  effected.
The Government of India by their letter dated April  3,  1957  informed  the
State Government that the work of integration of services  should  be  dealt
with by them in the light of the general principles already settled  at  the
Chief Secretaries  Conference.  This  has  been  construed  to  be  a  valid
delegation of powers to prepare the preliminary and  final  gradation  lists
under the direction and with the sanction of  the  Central  Government.  The
Government of India by its circular 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-[pic]section (7) of Section 115  of  the  Act
in  the  matter  of  change  in  the  conditions  of  service  relating   to
departmental promotions.

10.   The following principles had been formulated  for  being  observed  as
far as may be, in the integration of government  servants  allotted  to  the
services of the new States:
"In the matter of equation of posts:
(i)    Where  there  were  regularly  constituted  similar  cadres  in   the
different integrating units the cadres  will  ordinarily  be  integrated  on
that basis; but
(ii)  Where, however, there  were  no  such  similar  cadres  the  following
factors will be taken into consideration  in  determining  the  equation  of
posts-
(a)   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 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  Conference
had been properly taken into account. This is the narrow and  limited  field
within which the supervisory jurisdiction of  the  Court  can  operate.  But
where, as here, in the matter of equation of posts, the  Central  Government
had properly taken into account all the four principles decided upon at  the
Chief Secretaries Conference, the decision cannot be  assailed  at  all.  In
the present case, not[pic]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 Committee, directed that the posts of ASTOs in  the  former  States
of  Madhya  Pradesh  and  Hyderabad  should  be  continued  in  an  isolated
category, there being no  corresponding  post  in  the  successor  State  of
Bombay with which they could be equated. There were  19  ASTOs  in  the  pay
scale of Rs 150-10-200-EB-15-250 from Madhya Pradesh and  23  ASTOs  in  the
pay scale of Rs 170-8-225-EB-13-320 from Hyderabad  allocated  to  the  new
State of Bombay. In the former  State  of  Bombay  there  was  no  similarly
constituted cadre of ASTOs, but there were posts of STIs in  the  pay  scale
of Rs  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  was  a
promotion  post.  In  addition,  ASTOs  in  those  States   were   Assessing
Authorities and they enjoyed statutory powers of their  own  to  assess  tax
and levy penalties, whereas the STIs in Bombay had no such powers to  assess
tax or levy penalty but had merely to scrutinise returns and  generally  act
in a subordinate capacity to  STOs.  Evidently,  the  State  Government  was
wrong in directing by its  Resolution  dated  November  16,  1957  that  the
seniority of ASTOs from Madhya Pradesh and Hyderabad and  STIs  from  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  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
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  had   been
[pic]promoted as STOs Grade  III.  They  were  entitled  to  such  promotion
without passing such examination. Under the relevant rules  which  regulated
their conditions of service, there was only a possibility  of  reversion  in
the eventuality of their not passing the examination within  the  stipulated
time. Since no examinations admittedly have been held, there is no  question
of their reversion as ASTOs. If the decision of the High Court  were  to  be
upheld, it would imply that many  of  the  ASTOs  from  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
the passing of the STO examination a condition precedent  for  promotion  of
STIs to STO Grade III. There can be no doubt  that  the  State  Government's
Resolution dated June 13, 1964 and its  memorandum  of  November  21,  1964,
clarifying that the ASTOs from Madhya Pradesh and  Hyderabad  were  entitled
for promotion to the post of STO Grade III without passing the  departmental
examination, placed STIs from Bombay at a disadvantage. To ensure 'fair  and
equitable treatment',  the  State  Government  rightly  dispensed  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 fair and equitable to all."

34.   Reliance was also placed  on  the  decision  of  this  Court  in  S.P.
Shivprasad Pipal v. Union of India & Ors., (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 decided that since they all worked in the  area
of labour welfare, it  would  be  desirable  that  they  could  widen  their
experience. This would be possible if the cadres  were  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  scale  at  the  relevant  time,
merging of the three cadres cannot be said to have caused any  prejudice  to
the members of any of the cadres.  The  total  number  of  posts  were  also
increased proportionately when the merger took place so that the  percentage
of posts available on promotion was not in any manner adversely affected  by
the merger of the cadres.

16.   The appellant, however, contends that as a result of  the  merger  his
promotional chances have been very adversely affected because  his  position
[pic]in the 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  their
respective original  cadres.  The  proviso  to  this  Rule  prescribes  that
although  Assistant  Labour  Commissioner  (Central),  Labour  Officer   and
Assistant Welfare  Commissioner  shall  be  equated,  all  Assistant  Labour
Commissioners (Central) holding such posts on or before 31-12-1972 shall  be
en bloc senior to  Labour  Officers  and  (2)  Senior  Labour  Officers  and
Regional Labour Commissioners shall be  equated.  But  all  Regional  Labour
Commissioners holding such posts on or before  2-3-1980  shall  be  en  bloc
senior 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 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
ground  that  as  a  result,  service  conditions  of  the  respondent  were
adversely affected since his chances  of  promotion  were  reduced.  Relying
upon  the  decision  in  the  State  of  Maharashtra  v.  Chandrakant  Anant
Kulkarni, (1981) 4 SCC 130, this Court held that a mere chance of  promotion
was not a condition of service and the fact that there was  a  reduction  in
the chance of promotion would not amount to a change in  the  conditions  of
service."

35.   It is in the background of the aforesaid submission  advanced  at  the
hands of learned counsel, that we would consider the validity of the  merger
of 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
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.   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 Rules, 2003, and the STA Rules, 2003, the nature and  duties  of  the
two  cadres  were  combined.   Consequent  upon  their  appointment  as  Tax
Assistants and Senior Tax Assistants, members of the  erstwhile  ministerial
cadre, and members of the cadre of Data Entry Operators,  were  required  to
perform  both  procedural   duties   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 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  on
the touchstone of Articles 14 and 16 of the Constitution of India.

36.   For all the reasons recorded hereinabove, we are satisfied,  that  the
different orders passed by  the  Administrative  Tribunal,  and  the  common
order dated 13.4.2007 passed by the High Court, are liable to be set  aside.
 The same are accordingly hereby set aside.  The appeals filed by those  who
moved to the cadre of Data Entry Operators from the ministerial  cadre,  and
were thereupon  amalgamated  in  the  cadre  of  Tax  Assistants/Senior  Tax
Assistants, are allowed.  The connected appeals preferred by  the  Union  of
India, are also allowed. In the above view of the  matter,  the  authorities
shall give effect to Rules 4 and 5 of the TA Rules, 2003 and the STA  Rules,
2003, respectively, without any further delay.


.................................J.
                                             (Jagdish Singh Khehar)




.................................J.
                                             (S.A. Bobde)

New Delhi;
March 26, 2015.


ITEM NO.1B               COURT NO.4               SECTION XII


               S U P R E M E  C O U R T  O F  I N D I A

                       RECORD OF PROCEEDINGS



Civil Appeal  No(s).  2485-2490/2010



DHOLE GOVIND SAHEBRAO & ORS.                  Appellant(s)



                                VERSUS


UNION OF INDIA & ORS.                               Respondent(s)

WITH

C.A. No. 2491-2503/2010
, C.A. No. 2577/2010, C.A. No. 10386/2013



[HEARD BY HON'BLE JAGDISH SINGH KHEHAR AND HON'BLE S.A.BOBDE,JJ.]



Date : 26/03/2015 These appeals were called on for judgment     today.



For Appellant(s) 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 Respondent(s)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. Narasimhan,AOR



                 Mr. S. R. Setia,AOR

                 Mr. Vikas Mehta, AOR


                 Mr. Raghavendra S. Srivatsa, AOR

                 Mr. Rauf Rahim, AOR



             Hon'ble  Mr.  Justice  Jagdish  Singh  Khehar  pronounced   the
judgment of the Bench comprising His Lordship and Hon'ble Mr.  Justice  S.A.
Bobde.


            For the reasons recorded in the Reportable  judgment,  which  is
placed on the file, the appeals are allowed.



            The authorities shall give effect to Rules 4 and  5  of  the  TA
Rules, 2003 and the STA  Rules,  2003,  respectively,  without  any  further
delay.



(Parveen Kr. Chawla)                         (Renu Diwan)

    Court Master                                   Court Master

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