Judgment:
(Order per Hon'ble Mr. Justice P. Lakshmana Reddy, VC)
1. Both these OAs are filed challenging the same show cause notice dated 15.7.2008 and the establishment order No. 63/ 2008 dated 19.8.2008 passed by the second respondent under which the applicants in both these OAs are reverted from LDC to Sepoy. OA 417/ 2008 is filed by seven LDCs and OA 428/ 2008 is filed by one LDC. The impugned establishment order dated 19.12.2008 covers all the eight people covered in both these OAs. Hence, we propose to dispose of both these OAs by a common order.
2. The undisputed facts in this case are as follows:
All the eight applicants were originally appointed as Sepoys in the Hyderabad III Commissionerate. As per recruitment rules, the Sepoys/ Havildars are entitled for promotion as LDC. 50% is to be filled by way of conducting departmental examination and the remaining 50% shall be filled by seniority. The applicants in both the OAs passed the departmental examination and therefore a DPC was held on 30.9.2002 and considered all the applicants for promotion and recommended for promotion as LDCs. As per those recommendations, the 3rd respondent, the chief Commissioner, promoted all the applicants as LDCs vide establishment order No. 1/ 2003 dated 3.1.2003 and they took charge. While all of them are working as LDCs, a representation was submitted by Group `D' Association of Guntur Commissionerate contending that the DPC held on 30.9.2002 considered the seniority of Group `D' employees Commissionereatewise and not zonalwise and that as LDCs are made Group `C' which is a zonal-wise post, promotions are to be effected only on zonal-wise basis and not on commissionerate-wise seniority. On such representation, the Chief Commissioner of Customs and Central Excise, Hyderabad Zone, who is the cadre controlling authority for all the commissionerates decided that as the restructured LDCs cadre is identified as Group `C' cadre, those posts are to be treated as common cadre for all the commissionerates in andhra Pradesh as was hitherto considered and that promotion of Group `D' should be considered after preparing integrated inter se seniority list in the cadre of Group `D'. Therefore, he decided to review the promotions already made in pursuance of the recommendations of DPC dated 30.9.2002 and for that purpose review DPC was held on 10.10.2003 to review th proceedings of DPC held on 30.9.2002. The review DPC prepared a fresh panel and in the said panel, the names of the eight sepoys (the applicants in both these OAs) did not find place. Consequent to the recommendations of the review DPC, the Commissionerate of Customs and Central Excise, Hyderabad III issued establishment order No. 53/ 2003 dated 10.11.2003 reverting the said 8 sepoys (the applicants in both these OAs) to the grade of Sepoys and posted them to the very Commissionerate from where they were earlier promoted.
3. Aggrieved by that reversion order, all the 8 applicants filed OA 1318/ 2003 challenging the establishment order dated 10.11.2003 before this Tribunal. The Tribunal passed the interim order directing the department to permit all the applicants to continue in the post of group `C' pending disposal of the OA. Thereafter, after due hearing, this tribunal passed final order dated 27.12.2004 directing the respondents to follow appropriate procedure of issuing show cause notices to the applicants and to consider their representations on merits and determine the seniority of the prospective candidates Commissionerate-wise and then finalise the seniority of the candidates selected for promotion to the post of LDCs who have actually undergone the process of selection and fix their seniority in the grade of LDC.
4. The department challenged the said orders of this Tribunal by filing a writ petition No. 10568/ 2005 before the Hon'ble A.P. High Court. The Hon'ble a.P. High Court passed final order on 15.2.2008 with the following observations:
“7. At the outset, we are of the view that the Tribunal, while ordering notice before effecting any reversions, cannot simultaneously direct the petitioners to make promotions on commissionerate basis. These two findings are totally on two different standards: the former - following the principle of audi alteram partem and the latter being on merits.
8. When the Tribunal had directed the petitioners to put the respondents on notice, in normal course, it ought not to have carved out the procedure for promotion.
9. However, we are not expressing any view on that aspect in view of the fact put before this Court by the learned Assistant Solicitor General, appearing for the petitioners, that the case of the respondents would be considered for promotion in the existing vacancies. He also submits, upon being questioned by this Court, that there is likelihood of all the respondents being promoted in the existing vacancies, but thee is no assertion, as such. He also submits that there are number of vacancies in which the respondents can be accommodated.
10. However, without going deep into the subject, since the only issue involved, as also pointed out by the Tribunal, is that the principles of natural justice have been violated and since there was a positive direction to the petitioners to follow the said principles of natural justice and initiate action, we do not propose to express our view on merits.
11. Accordingly, the impugned order, passed by the Tribunal, insofar as it relates to effecting the promotions on commissionerate basis, at the threshold ie., even before following the principles of natural justice, is concerned, is not proper.
12. For the foregoing, suffice it to close the writ petition with a direction to the writ petitioners to put all the affected parties on notice and take appropriate action in accordance with law”.
5. Thereafter, the impugned show cause notice dated 8.7.2008 was issued by R-4, Hyderabad III Commissionerate to all the 8 applicants to show cause why they shall not be reverted to the cadre of Sepoy as their names do not find place in the select panel prepared by the Review DPC conducted on 10.10.2003.
6. Aggrieved by the said show cause notice dated 8.7.2008, seven of them filed OA 417/ 2008 on 13.7.2008 and other Sepoy field OA 428/ 2008 on 19.7.2008. All of them challenged the show cause notice on the following grounds:
“i)The impugned action is unsustainable and the respondent who issued the same had no jurisdiction to decide the issue and as such the exercise is wholly without jurisdiction. Any action of the authority which lacks patent jurisdiction would be void and therefore the impugned order cannot stand the scrutiny of this Hon'ble Tribunal.
ii)A cursory look at the New Rules would leave even a person with mediocre knowledge of the service law that it has never contemplated filling up of the posts for which they apply basing on the consolidated common interpolated list prepared on zonal basis for entire andhra Pradesh Zone. The only exception that has been carved out therein is if there was a prescription to that effect by the 2nd respondent. Admittedly, even it is not the case of the respondents that there was such a prescription. In the absence of the same, there is no permission for the 4th respondent for making the statement the LDC cadre has been treated as a common cadre for all the commissionerates in the state of andhra Pradesh. This being contrary to the Rules, cannot but be set at naught by this Hon'ble Tribunal.
iii)The lack of basic knowledge on the part of the respondent who issued the impugned order would be patent by the very fact that it would be unheard of for one to rely on the Old Rules more particularly when the New Rules as is stated in the preamble itself was issued in supersession of the former. The applicants have been promoted against the restructured vacancies i.e. after the New Rules have been given effect to which admittedly was form 9.9.2002. Thus, there cannot be a situation of applying the Old Rules to the vacancies that were to be filled up after the New Rules have been given effect superseding the Old Rules. This being contrary to known principles cannot be countenanced by this Hon'ble Tribunal.
iv) The respondents failed in yet another field i.e. to consider the entire issue in an objective and dispassionate manner in as much as the show cause notice to be issued is not to be reduced to an empty formality. As is made explicit in the impugned notice, this is more a communication of decision couched in the format of the notice. It would not need a crystal ball gazing to find out as to what would be the result of this make believe exercise. This undoubtedly is not the purpose of following principles of natural justice. Such an exercise undertaken by the respondents answering the description of a State under Article 12 of the Constitution of India cannot pass the test of being reasonable and has to fall to ground when tested on the touchstone of Articles 14 and 16 of the Constitution of India and as such is liable to be interfered by this Tribunal.
v) Without prejudice to the contention of lack of very jurisdiction and also existence of the power in the respondent who has passed the impugned order to do so, the exercise cannot be sustained as the jurisdictional facts for indulging in the same is also conspicuous by its absence. Assuming for the sake of argument that the authority has the jurisdiction to give an interpretation contrary to the Statutory Rules; apply Old Rules to the posts filled up after they have been superseded by the New Rules; issue of show cause notice after a decision has been arrived at leaving the applicants in a sitting duck situation, can be done only after integrating the Commissionerate-wise seniority and show the position of the applicants therein. This exercise has not been done till date. On the contrary, even after the institution of the Original Application on the earlier occasion, the respondents have been circulating only Commissionerate-wise seniority. Thus, on this count also, the impugned action cannot be sustained.
vi) The action of the respondents is also contrary to the judgment rendered by the Hon'ble High Court in Writ Petition No. 7963 of 2004 and batch on 7.3.2005 when the respondents themselves have sought for judicial review of the orders of this Hon'ble Tribunal wherein the primary contention of the petitioners therein was that the Old Rules must be applied to all the vacancies that arose prior to the promulgation of new rules (in that case for Inspector of Central Excise). This contention was accepted and it was held that the old rules can be applied only till the new rules were promulgated. In the present case, the promotions were given only after the Old Rules have been superseded and the New Rules given effect to. Thus, the basis of passing the impugned order is totally illegal and also contrary to the judgment rendered in the case of a similar issue in the same department. The respondents cannot therefore be permitted to take any stand contrary to what has been pleaded and urged therein. This aspect has been deliberately left out of consideration and the reasons is obvious.
vii) The applicants have been having the advantage of continuing as LDCs by virtue of the decision of the Tribunal in the earlier occasion. The Hon'ble High Court has also directed that the status quo be maintained and as such they are working as LDCs even as on date. Since the very endeavour is to revert the applicants contrary to all known principles, submitting a reply to the authority who has already decided to revert them, there would be no meaningful purpose in replying to the same. Further, the entire action being without inherent jurisdiction, this Hon'ble Tribunal may have to interfere in spite of the fact that the impugned order is couched as a show cause notice. As the applicants have been continuing as LDCs, the balance of convenience lies very heavily in their favour. The respondents would also not be suffering any prejudice in as much as they made a submission before the Hon'ble High Court that there is likelihood of all the respondents therein (applicants herein) being promoted in the existing vacancies. Though there was no assertion made to this effect, it would be implied that there were in fact vacancies and the reversion now attempted is only as the respondents have taken it as a prestige issue. It would be rather unfair for the respondents to exhibit such a conduct and thus, it is an aptly fit case for grant of interim relief as prayed for herein.”
On the first day of hearing in OA 417/ 2008, i.e. on 14.7.2008, this Tribunal passed interim order not to effect reversions till the reply is filed and also directing the applicants to submit reply to the show cause notices issued to them. Similar interim order was passed in OA 428/ 2008 also. Accordingly, all the applicants submitted their explanations to the show cause notice. Thereafter the impugned establishment order dated 19.12.2008 has been passed holding that the establishment order No. 63/ 2003 issued by the Joint Commissioner (PandV), Hyderabad III Commissionerate is void and therefore all the applicants are to be reverted to the grade of Sepoy with effect from 10.11.2003, i.e. the date of very reversion vide establishment order No. 53/ 2003 dated 10.11.2003 issued by the Additional Commissioner (PandV), Hyderabad III Commissionerate. Thereafter the applicants in both the OAs amended their prayers seeking to set aside the establishment order No. 63/ 2008 dated 19.12.2008.
7. The respondents field reply statement in September 2008 and also additional reply statement in March 2009. In the reply statement, the respondents asserted that the recommendations of the DPC held on 30.9.2002 on the basis of seniority list prepared Commissionerate-wise are not valid and that as the restructured LDC post is identified as Group `C' cadre, promotions of Group `D' to LDC cadre shall be made taking into consideration the integrated seniority of Group `D' staff zone-wise and therefore, the review DPC was rightly conducted and the applicants were reverted as their names were not recommended by the review DPC held on 10.10.2002. The respondents further pleaded that in conformity with the orders of the Hon'ble A.P. High Court, show cause notices dated 8.7.2008 were issued and there is no illegality in issuing show cause notices. In the additional reply, the respondents pleaded that as per the LDC Recruitment Rules 1979, 85% of the vacancies are to be filled by way of direct recruitment and 15% of vacancies by appointment from eligible Group `D' officers (10% under examination quota and 5 % under seniority-cum-fitness quota) and the LDC cadre (new) came into existence with effect from 21.9.2002 and as per the LDC (new) Recruitment Rules 2002, the vacancies are to be filled 100% by way of promotion from Group `D' (50% under seniority quota and 50% under departmental quota). In the additional reply, it is admitted that the recruitment rules 2002 have been issued in supersession of earlier recruitment rules of 1979. It is also admitted that as per LDC (new) Recruitment Rules 2002, each Commissionerate shall have its own separate cadre unless otherwise prescribed by the Central Board of Excise and Customs (CBEC). The respondents pleaded that the same provision is also laid in the recruitment rules of other Group `C' cadres and promotions in those cadres are effected treating the cadres as common cadre of A.P. Zone and hence it was decided by the erstwhile cadre controlling authority to treat the LDCs (restructured) cadre as common cadre of Hyderabad/ Vizag zone and review DPC dated 10.10.2003 was conducted to review the proceedings of DPC dated 30.9.2002. It is further pleaded that the Commissioner of Hyderabad Zone by his letter dated 5.7.2006 ordered that the Hyderabad III Commissionerate is the appointing authority for LDC Group `C' ministerial common cadre of Hyderabad/ Vizag zone and he is the cadre controlling authority for group `C' ministerial cadres of Hyderabad/ Vizag zone. It is further pleaded in the additional reply a consolidated common interpolated seniority list was prepared on zonal basis for the entire A.P. Zone for the purpose of review DPC held on 10.10.2003 and considering that seniority, select panel was prepared by the review DPC and that consolidated common interpolated list was prepared following the principles of seniority in terms of DOPT OM No. 20019/2/83 dated 10.9.85 and OM No. 20011/1/1998 dated 12.12.98. The respondents pleaded that the applications are devoid of merits and are liable to be dismissed.
8. During the course of hearing, the learned counsel for the applicants contended that no consolidated interpolated common seniority list of Group `D' officers of entire A.P. Zone was ever prepared, much less circulated to all the Group `D' officers in the State and if at all any such list had been prepared, it is not valid as it was prepared behind the back of the applicants without giving opportunity to them. He submitted that every year the seniority list was prepared Commissionerate-wise alone and are being circulated even after 2003 and therefore, the contention of the respondents that the review DPC considered the integrated seniority list for the purpose of recommending names for promotions is not correct. He further contended that the Chief Commissionerate has no power to deviate from the recruitment rules of 2002 and to follow the old rules of 1979 which were superseded by new LDC recruitment rules 2002. As per the new recruitment rules, each commissionerate shall have it is own cadre unless otherwise directed by the CBEC and that in the instant case, no order was passed by the CBEC creating common cadre of LDCs for the entire State and therefore, the decision of the cadre controlling authority to review the select list prepared by a duly constituted DPC dated 30.9.2002 is not in accordance with law. Therefore, the recommendations made by the review DPC held on 10.10.2003 are not sustainable in law. The counsel reiterated the contentions raised in the applications. On the other hand, the learned senior standing counsel reiterated the contentions raised by the respondents in their reply and additional reply. He submitted that the LDC (restructured) cadre is identified as Group `C' Cadre and that Group `C' post is zonal-wise post and therefore zonal-wise seniority of feeder cadre is to be taken into consideration for the purpose of promotion to LDC (new) which is identified as Group `C' cadre and that in respect of other Group `C' cadres, the zonal-wise seniority is being considered for promotion and therefore in respect of LDC (new) cadre which is recognized as Group `C', same procedure is followed and that there is no illegality or irregularity in the impugned orders of reversion passed by the cadre controlling authority and that both the applications are liable to be dismissed.
9. The points that arise for consideration in these applications are:
(i) Whether the impugned show cause notices dated 8.7.2008 are not sustainable in law?
(ii)Whether the Commissionerate-wise seniority of Sepoys is to be taken into consideration for the purpose of promotion from Sepoy to LDC (restructured) as contended by the applicants or the zonal-wise seniority is to be taken into consideration for promotion from Sepoy to LDC (restructured) as contended by the respondents?
(iii) Whether the integrated common interpolated seniority list of Group `D' officials in the entire A.P. Zone was duly prepared and considered by the Review DPC held on 10.10.2003?
(iv)Whether the respondents are justified in reviewing the recommendations made by the DPC held on 30.9.2002?
(v)Whether the establishment order No. 63/ 2008 dated 19.12.2008 reverting the applicants from LDC to Sepoy is sustainable in law?
(vi)Whether the proceedings of Review DPC dated 10.10.2003 are valid?
(vii) To what result?
10. Point No. (i):
Originally, the show cause notices dated 8.7.2008 were challenged on the ground that there is no direction from the Hon'ble High Court to revert the applicants and therefore there was no jurisdiction for the respondents to issue such show cause notice. The respondents pleaded that reversion order given was set aside by this Tribunal on the ground that no show cause notice was given before ordering reversions. He further pleaded that when the orders of this Tribunal was challenged by the department before the Hon'ble A.P. High Court, the Hon'ble High Court closed the writ petition with a direction to put all the affected parties on notice and to take appropriate action in accordance with law and accordingly show cause notice are issued. We do not find any illegality or irregularity in issuing show cause notices to give opportunity to the applicants to explain as to why they shall not be reverted in pursuance of the review DPC proceedings. The said notice was issued to the applicants to enable the applicants to submit their objections for the proposed reversion. Therefore, this Tribunal, by way of interim order directed the applicants herein to submit explanations to show cause notices issued to them. Accordingly, the applicants submitted explanations and the department passed the final order and those final orders are also now challenged. Therefore, there is no need to quash the show cause notice. Regarding the jurisdiction, it is not disputed that the Hyderabad III Commissionerate is the cadre controlling authority for all the commissionerates in respect of Group `C' cadre. Therefore, it cannot be said that the authority which issued the show cause notices have no jurisdiction to issue show cause notice. Thus, this point is found accordingly.
11. Points No. (ii) to (v):
It is not disputed that the President of India in exercise of powers conferred by the proviso to Article 109 of the Constitution, in supersession of the Central Excise and Land Customs Department Group `C' Post Recruitment Rules 1979 framed new rules regulating the method of recruitment to the post of Lower Division Clerks in the Central Excise and Customs Department, Ministry of Finance and those rules are duly notified. The respondents, in their additional reply admitted that a special provision is incorporated in the LDC (new) Recruitment Rules 2002 stating that each Commissionerate shall have its own separate cadre unless otherwise prescribed by the CBEC. It is also admitted in the additional reply that old recruitment rules 1979 were superseded by the new recruitment rules of 2002 and that the DPC was convened on 30.9.2002 as per LDC Recruitment Rules 2002 to consider the promotion of Group `D' staff to LDC cadre (new). As seen from rule 3 of the LDC recruitment rules 2002, a special provision is incorporated which reads as follows:
“Each Commissionerate shall have its own separate cadre unless otherwise prescribed by the Central Board of Excise and Customs”.
It is not the case of the respondents that CBEC prescribed otherwise. Therefore, the DPC convened on 30.9.2002 considered Cmmissionerate seniority of Group `D' staff for the purpose of promotion to the LDC cadre of each Commissionerate. In other words, they prepared panels commissionerate-wise taking into consideration the commissionerate-wise seniority of Group `D'. They prepared panels and those panels were accepted by the then cadre controlling authority and issued promotion orders and all the applicants were promoted as LDCs. But, after a period of one year, the succeeding cadre controlling authority found fault with the select panel prepared by the DPC held on 30.9.2002 and constituted the review DPC to be conducted on 10.10.2003 to revise the select list prepared on 30.9.2002 on the ground that LDCs in Central Excise and Customs department is recognized as Group `C' cadre and therefore, the LDC post is a zonal-wise post and hence zonal-wise seniority of Group `D' employees is to be considered for purpose of promotion. It is not known as to under what provision the then cadre controlling authority had power to review the promotion orders passed by his predecessor who is of equal rank. If at all, the cadre controlling authority was of the view that the panels prepared by DPC held on 30.9.2002 are not in accordance with rules and required to be reviewed, he ought to have sought for clarification from the CBEC. But he did not do so. Instead he himself took an unilateral decision to revise the panels already prepared by a duly constituted DPC dated 30.9.2002 and constituted review DPC with a direction to prepare fresh panels taking the zonalwise seniority after preparing a consolidated interpolated common seniority list in respect of Group `D' staff of all the Commissionerates. Though in the reply, the respondents pleaded that a common interpolated seniority list was prepared for the purpose of review DPC held on 10.10.2003, in the final orders dated 19.12.2008 passed by the cadre controlling authority, it is admitted that no common cadre seniority list of Group `D' cadres of A.P. Zone was prepared and issued. Even if it is assumed that such a common cadre seniority list was prepared for the purpose of Review DPC, it ought to have been circulated to all the Group `D' employees in the entire zone inviting objections if any and only after receiving objections, the seniority list ought to have been finalised and again communicated. No such exercise has been done by the respondents. That may be reason why the respondents admitted in the final order dated 19.12.2008 that no common cadre seniority list of Group `D' cadres of A.P. Zone was prepared and issued. Therefore, we have no hesitation to hold that the integrated common interpolated seniority list of Group `D' employees in the entire A.P. Zone was not duly prepared and considered by the Review DPC held on 10.10.2003.
12. As seen from the new recruitment rules specifically framed in respect of lower division clerks in the Department of Central Excise and Customs, separate LDC cadre for each Commissionerate is created by a special provision incorporating in the rules. When the rules are specific, it is not open for the cadre controlling authority to deviate from the said rules and to decide that zonal-wise seniority of Group `D' officers is to be considered for promotion to the cadre of LDC. Unless otherwise prescribed by the CBEC, the LDC cadre is to be treated as a separate cadre of each Commissionerate. Merely because Group `D' employees association of Guntur Commissionerate submitted a representation to consider zonal-wise seniority as has been done earlier under old rules 1979, the cadre controlling authority is not empowered to accept such representation and to revise the panels prepared by the duly constituted DPC dated 30.9.2002. In the absence of amendment to the new rules 2002, or in the absence of specific directions given by CBEC, the cadre controlling authority is not competent to bypass the rules framed by the President of India. The only reason given by the respondents in their reply is that other Group `C' cadres are considered as common cadre for the entire A.P. Zone, the LDC (new) cadre has to be treated as a common cadre for all the Commissionerates in andhra Pradesh as was hitherto considered. When separate rules to regulate the method of recruitment to the posts of lower division clerks in the Central Excise and Customs Department are framed in supersession of Central Excise and Land Customs Department Group `C' Post Recruitment Rules 1979, it cannot be said that the same procedure that is being adopted to other Group `C' cadre in the Central Excise and Land Customs Department, is to be followed in respect of lower division clerks, which is also identified as Group `C' post. The rule making authority while classifying the LDC post as Group `C' made a special provision that each Commissionerate shall have its own separate cadre of LDCs unless otherwise prescribed by the CBEC. Admittedly, CBEC has not prescribed any procedure deviating from the special provision that each Commissionerate shall have its own separate cadre. In fact, several changes have been brought out in respect of recruitment to the cadre of LDCs in the Central Excise and Customs Department in the new Rules of 2002. As per the old rules of 1979, only 15% of LDC posts were required to be filled up by way of promotion and the rest 85% by direct recruitment. But as per the new recruitment rules of 2002, there shall be no direct recruitment of LDCs and all the LDC posts in Central Excise and Customs Department shall be filled only by way of promotion, 50% by way of seniority and the remaining 50% by conducting departmental competitive examination. Probably in view of such changes regarding recruitment of LDCs brought out in the new rules, the rule making authority thought it fit to make the LDC cadre as Commissionerate-wise cadre, though it was identified as Group `C'. Nothing prevents the rule making authority to make the LDC cadre as Commissionerate-wise cadre and not zonal-wise cadre. The cadre controlling authority is bound to follow the recruitment rules, 2002 and he cannot resort to apply the method prescribed under the old rules which are superseded on the ground that other Group `C' cadre posts in the department are treated as common cadre for all the Commissionerates. When the rule making authority decided that each commissionerate is to have its own separate cadre of LDCs and incorporated a special provision to that effect, the Chief Commissioner cannot ignore such special provision and follow the old method of promotion contained in the old superseded rules of 1979. Under the new rules, only CBEC is given power to relax the provision of separate LDC cadre for each commissionerate by incorporating words in rule 3 unless otherwise prescribed by the CBEC . No order of the CBEC declaring the LDC cadre in the department as common cadre for all the commissionerates exercising powers under rule 3 of the new rules is filed before this Tribunal. At any rate, as on 30.9.2002, on which date the duly constituted DPC was held and prepared select panels basing on the existing commissionerate-wise seniority list of Group `D', there was no order passed by the CBEC exercising its powers under rule 3 of the new LDC Recruitment Rules, 2002. Therefore, the DPC held on 30.9.2002 rightly followed the new rules 2002 regulating the method of recruitment to the posts of lower division clerks in the Central Excise and Customs Department and rightly prepared select lists of LDCs following commissionerate-wise seniority. In fact, in para 2 (i) of the impugned establishment order No. 63/ 2008, it is clearly admitted that the DPC which met on 30.9.2002 to consider promotion of Group `D' staff to LDC cadre [(new), (Group `C')] drew a select panel basing on the existing commissionerate-wise seniority list and vacancies were filled according to the sanctioned strength allotted to each commissionerate and the select panels were drawn separately for each commissionerate based on the provisions contained in the LDC Recruitment Rules, 2002, according to which each commissionerate is to have its own separate cadre, unless otherwise prescribed by the CBEC. It is nowhere stated in the impugned order dated 19.12.2008 that CBEC prescribed otherwise. In para 2 (ii) it is stated that as per LDC Recruitment Rules 1979 prevailing prior to the cadre restructuring, promotion to the post of LDC was carried out from the common interpolated list on zonal basis from among the seniority lists of Group `D' maintained commissionerate-wise, taking the date of joining as the criterion and the said procedure was adopted as the post of LDC was categorized as Group `C' and the cadre was common cadre for all the commissionerates in andhra Pradesh zone. In para 2 (iii) it is stated that after careful examination of the representation submitted by Group `D' staff, Guntur Commissionerate, the then cadre controlling authority, i.e. the Chief Commissioner of Customs and Central Excise, Hyderabad Zone decided that in view of the fact that LDC (new) cadre has been identified as Group `C' cadre in the restructuring proposal and Group `C' cadres are considered as common for the entire andhra Pradesh Zone, the LDC (new) cadre has to be treated as a common cadre for all the commissionerates in andhra Pradesh as was hitherto considered. The said decision of the then competent authority is in gross violation of the LDC Recruitment Rules, 2002. The Chief Commissioner is not competent to ignore the new rules. He is not competent to declare or treat the LDC cadre post in a commissionerate as a common cadre subsequent to the framing of the rules 2002 whereunder direct recruitment for LDC post has been dispensed with and 100% LDC poss are required to the filled only by way of promotion from Group `D' staff. In the impugned orders, it is simply mentioned that LDC cadre post is common cadre post for all the commissionerates without any basis even after the new rules came into force. Therefore, we have no hesitation to hold that the impugned establishment order No. 63/2008 is not in accordance with law and is liable to be set aside. Thus, all these points are found against the respondents.
13. Point No. (vi):
It is found supra that the select panel prepared by the DPC held on 30.9.2002 are strictly in accordance with the LDC Recruitment Rules, 2002 and there was no need to review the said select panels. The then cadre controlling authority grossly erred in deciding to review the said panels and to convene review DPC dated 10.10.2003. The review DPC did not follow the new rules of 2002 and instead followed the old rules of 1979 which were superseded. Hence, the proceedings of review DPC dated 10.10.2003 are not valid. The select panels prepared by the DPC held on 30.9.2002 are valid and the promotions given to the applicants are strictly in accordance with rules and there is no need for reversion. It is also found supra that the establishment order No. 63/ 2008 dated 19.12.2008 reverting the applicants from LDC to Sepoy is not sustainable in law. Thus, this point is also found against the respondents.
14. In the result, the impugned establishment order No. 63/ 2008 dated 19.12.2008 reverting the applicants from LDC to Sepoy is set aside and the proceedings of the DPC held on 30.9.2002 are upheld. Both the OAs are allowed accordingly. There shall be no order as to costs.