you can challenge the notice before Central Administrative Tribunal alleging the mistake and seniority matter.
Recruitment Rules of Tax Assistant in Central Board of Indirect Tax
Respected sir, Recruitment Rules of the post of Tax Assistant, in the Central Board of Indirect Tax department, published vide (G.S.R)12E dt.10.01.2014, with 90% from direct recruitment through Staff Selection Commission and 10% by promotion for feeder cadre i.e Lower Divisional Clerk, how have complete 8 years of regular service in Lower Divisional Clerk falling which 8 years of combined service of Lower Divisional Clerk and Head Hawaldar. Sir, it is to bring to your kind notice that Lower Divisional Clerk and Head Hawaldar are two different cadres which will not have Combined Service. Lower Divisional Clerk is Ministerial Cadre(with 1900/- Grade Pay) and Head Hawaldar is Non-Ministerial cadre(With 1900/- Grade Pay) and they have different promotions channels. Lower Divisional Clerk and Head Hawaldar will not have a combined service, but Hawaldar(with 1800/- Grade Pay) is feeder cadre for Lower Divisional Clerk. Staff Associations of Central Board of Indirect Tax pointed out the mistake in the Recruitment Rules by giving representation. And also stated that if correct Recruitment Rule could have published more than 19 Lower Divisional Clerk in Hyderabad zone are eligible for the post of Tax Assistant as they have combined service of 8 years as Lower Divisional Clerk and Hawaldar. All the Chief Commissioners of Central Board of Indirect Tax represented to Board pointing out mistake done by the board and requested to amend Tax Assistant Recruitment Rule and to make Hawaldar as combined Service which is feeder cadre to Lower Divisional Clerk. Relishing the mistake in the Tax Assistant Recruitment Rule published vide G.S.R 12(E) dt. 10.01.2014, given a amendment in the Recruitment Rule vide G.S.R.12(E) by changing the only word i.e Head Hawaldar to Hawaldar on 15.09.2015 and giving prospective effect from the date of publishing i.e. 15.09.2015(After 18 Months) instead of giving retrospective effect i.e 10.01.2014 date of principal rules. Due to mistake done by board of wrongly publishing the recruitment rules in the year 2014 and the amendment given in the year 2015(After 18 months) and giving prospective effect more than 100 persons direct recruit have joined in the gap of 18 months. If the Recruitment rules have published correctly in the year 2014 10% promotes will be seniors to 100 direct recruit officers. Sir, can we get retrospective effect of Tax Assistant Recruitment Rules i.e 10.01.2014 because the mistake done the board by taking combined service which will not combined service i.e Lower Divisional Clerk and Head Hawaldar. Please advice.
Asked 5 years ago in Constitutional Law
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9 Answers
You need to file a writ petition to seek aforesaid relief from high court
The association may take up this matter by representation to the authorities concerned and seek relief.
However since the recruitment process is completed at this stage, the newly recruited staff amy also approach court if there is any injustice done to them.
The association as a body representing the welfare of the employees of the organisation may file a writ petition agaisnt the organisation seeking the said relief after getting a reply from the authorities refusing to entertain their request.
Thank you very much for your reply sir, Can you please let me know what are the chances of getting relief if I approach Court.,,, if any previous court judgments wherein retrospective effect were given against worryingly published Recruitment Rules. Can we challenge Recruitment Rules which are passed by President of India as per article 309 of the constitution. Regards Susheel.
Asked 5 years ago
P. Mahendran vs State Of Karnataka on 5 December, 1989
SC has held it is well-settled rule of construction that every statute or statutory Rule is prospective unless it is ex- pressly or by necessary implication made to have retrospec- tive effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the Rule must be held to be prospective. If a Rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure
Supreme Court in Ex-Capt. K.C. Arora v. State of Haryana declared ultra vires retrospectiveamendments made to the Punjab National Emergency (Concessions) Rules, 1965 as applicable to Haryana. Under the Punjab National Emergency (Concessions) Rules, 1965 ex-emergency commissioned officers were entitled to the benefit of their military service on their reappointment in the State Civil Service against the vacancies reserved for ex-army officers. The Haryana Government by a notification dated 9-8-1976 amended the definition of the expression "Military Service" in the 1965 Rules thereby restricting the benefit of military service only up to 10-1-1968 with the result that the petitioners before this Court were deprived of their army service for the purpose of fixation of seniority in the civil service for the period 1969-1971. The amendment was challenged on the ground that it was ultra vires the Constitution insofar as it affected prejudicially persons who had acquired vested rights. This Court following the Constitution Bench in State of Gujarat v. Raman Lal Keshav Lal Soni1 struck down the amendment on the following reasonin-: (SCC p. 292, para 22; p. 295, para 23) "The question, however, has been pointedly considered recently by a Constitution Bench of this Court in State of Gujarat v. Raman Lal Keshav Lal Soni1 .... In view of this latest pronouncement by the Constitution Bench of this Court, the law appears to be well settled and the Haryana Government cannot take away the accrued rights of tile petitioners and the appellants by making amendment of therules with retrospective effect.
Undoubtedly, the Government has got the power under proviso to Article 309 of the Constitution to make rules and amend the rules giving retrospective effect. Nevertheless, such retrospectiveamendments cannot take away the vested rights and the amendments must be reasonable, not arbitrary or discriminatory violating Articles 14 and 16 of the Constitution
You can challenge but I can't tell you the chances without studying your entire matter in person. Can only tell you remedy
You may approach court for relief but the success rate is not confirmed because they may easily escape citing that this policy decision.
However this will not prevent you from filing a writ or suitable petition before high court seeking relief.
- As per the information mentioned in the present query, makes it clear that the act of the department arbitrary to those you have acted upon the prior notification.
- There is a law of estoppel wherein after the advertisement of the department of somebody changes its position (apply) then thereafter due to any reason department can’t deny the benefits to those who have already acted upon it.
- And also it should have retrospective effects on the basis of the law of estoppel as mentioned above.
- You should approach the Hon’ble High Court Inder the Writ Jurisdiction of Mandamus or Certiorari seeking relief as stated by you in your query.
Dear Sir,
Please consult experienced Tax Consultant.
