TSHERING TENDUF LA AHMEDABAD Vs. UNION OF INDIA
LAWS(GJH)-1984-7-9
HIGH COURT OF GUJARAT
Decided on July 03,1984

TSHERING TENDUF LA, AHMEDABAD Appellant
VERSUS
UNION OF INDIA Respondents


Referred Judgements :-

SUDHABEN V. REGIONAL PASSPORT OFFICER AHMEDABAD AND ANOTHER [REFERRED]
STATE OF MYSORE VS. SYED MAHMOOD [REFERRED]
MOHAMMAD USMAN VS. STATE OF ANDHRA PRADESH [REFERRED]
STATE OF MYSORE VS. C R SHESHADRI [REFERRED]


JUDGEMENT

S.B.MAJMUDAR - (1.)In this petition under Article 226 of the Constitution the petitioner who belongs to a scheduled tribe has challenged the action of the Departmental Promotion Committee hereinafter referred to as the DPC) finding the petitioner to be not yet fit for promotion in January 1983 when it deliberated his case for promotion to the higher post in Grade I which is designated as Joint Chief Controller of Imports and Exports class I (Jt C. C. for short) from his substantive post of Deputy Chief Controller of Imports and Exports which is in Grade II. (Dy. C.C.)
(2.)This petition has a little chequered history and hence it is necessary to note at the outset the relevant facts leading to this petition and its progress after its institution in this court. The petitioner is M. A. (Economics) and belongs to a scheduled tribe. The petitioner was selected and appointed as Controller of Imports and Exports Class I in the office of the Chief Controller of Imports and Exports Ministry of Commerce Government of India New Delhi in the year 1962 as a direct recruit. On 10-9-1967 he was confirmed in the said post in a substantive capacity in the organization of the Chief Controller with effect from 10-9-1967- Thereafter on the recommendation of the DPC the petitioner alongwith 18 other officers was further promoted to the higher post of Deputy Chief Controller of Imports and Exports. He was promoted with effect from 1-2-1970. After completion of the reqUisite two years probation period satisfactorily by a letter dated 21 of the Government of India the petitioner was confirmed on the promotion post of Deputy Chief Controller. The petitioner occupied the said promotional post thereafter continuously.
(3.)In the meanwhile on 6-8-1977 Central Trade Service (Group A) was constituted under the Central Trade Service (Group A) Rules 1977 framed by the President of India of Art- 309 of the Constitution (herein- after referred to as the service rules). The said rules were published in the Govt. of India Gazette on 6-8-1977- As per rule 3 of the Service rules the Central Trade Service (Group A) was to comprise of persons appointed to the service under rules 6 7 and 8. As per rule 4 there were to be 3 grades in the service viz. Grades I II and III. The posts included in the various grades of service their classification and pay scales were to be as specified in schedule I. As per the said Schedule post of Joint Chief Controller of Imports and Exports was in grade I while the post of Deputy Chief Controller of Imports and Exports was in grade II. As per rule 6 of the service rules the Union Public Service Commission was enjoined to constitute a selection committee with the Chairman or a Member of the Commission as President and not more than three representatives of the Ministry of Commerce of which one shall be from the Organization of the Chief Controller of imports and Exports to determine the suitability of departmental candidates for appointment to the different grades and to prepare an order of preference for each grade for the initial constitution of the service and submit a report. The petitioner being a departmental candidate was duly absorbed in the aforesaid service and was appointed to grade II post of Deputy Chief Controller which he was earlier holding substantively from 21-8-1972 after completion of his probationary period. The President of India appointed the petitioner as Deputy Chief Controller with effect from Nov. 28 1979 in grade II of the service as constituted under the service rules. By a notification dated 1-12-1979 published in the Govt. of India Gazette on 1/12/1979 looking to the service record of the petitioner and his seniority he was placed at Sr. No. 2 in the list of grade II officers and the salary of the petitioner as Dy. Chief Controller was fixed at Rs. 1100-50-1600. Rule 7 of the service rules dealt with the question regarding special provision pertaining to certain departmental candidates: while rule 8 dealt with future maintenance of service. It is now time to refer to rule 8 which is relevant for the decision of the present petition. The said rule is therefore reproduced in extenso as under:
"8 (1) After the initial constitution of the service has been completed by the appointment of departmental candidates or otherwise vacancies shall be filled in the manner as hereafter provided: (A) Grade I. Not more than 400/0 of the vacancies in grade I shall be filled by transfer or deputation of officers from the I.A.S. and Central Services Group A eligible for appointment as Deputy Secretary to the Government of India (Period of deputation shall ordinarily not exceed 4 years): and The remaining vacancies in Grade I shall be filled by selection on merit from the members of Grade II who have completed at least 5 years service in the grade rendered after appointment thereto on a regular basis on the recommendations of a departmental promotion committee. Provided that for a period of five years from the date of the commencement of the service service rendered by a tirade I officer as erstwhile regular Deputy Chief Controller in the organization of Chief Controller of imports and Exports shall be counted as qualifying service for purpose of eligibility for promotion from Grade II to Grade 1"



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