Central Administrative Tribunal - Delhi
Pritam Dahiya vs Revenue on 19 December, 2023
1 OA No.2977/2023
Central Administrative Tribunal
Principal Bench: New Delhi
OA No.2977/2023
MA No.3477/2023
MA No.3478/2023
Order reserved on: 29.11.2023
Order pronounced on: 19.12.2023
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
1. Pritam Dahiya (Promotion to JTS), Group „A‟
Appraiser,
Age 39 years,
S/o Sh. Partap Singh,
O/o commissioner of Customs (Audit),
Custom House, 60, Rajaji Salai, Chennai-01
R/o TDI Espania, Opp. Jurassic Park, GT Road,
Kumaspur, Sonipat-131001.
2. Suneel Kumar (Promotion to JTS), Group „A‟
Appraiser,
Age 46 years,
S/o Sh. Salek Chand,
R/o 277B, Durga Puri Extension,
Shahdara, Delhi-110093.
3. Rakesh Kumar Mishra, (Promotion to JTS), Group „A‟
Appraiser,
Age 45 years,
S/o Sh. Daya Nand Mishra,
R/o House No.69/3, CPWD Quarters
Thirumangalam Anna Nagar, Chennai-600040.
4. N. Kishore, (Promotion to JTS), Group „A‟
Appraiser,
Age 41 years,
S/o Sh. N.Varada Reddy,
R/o E1T4, VGN Minerva, Guruswamy Street,
Nolambur, Chennai-600095.
5. Girish Yadav, (Promotion to JTS), Group „A‟
Appraiser,
Age 41 years,
2 OA No.2977/2023
S/o Sh. Omprakash Yadav
R/o No.39, C&P Residency, Rajakuppam,
Vanagram, Chennai-95.
6. Sangeetha G, (Promotion to JTS), Group „A‟
Appraiser,
Age 45 years,
W/o Sh. Kamal Sadani,
R/o Arihant Garuda Apartment,
Police Manickam Street,
Aynavaram, Chennai-600023.
....Applicants
(By Advocate: Mr. M.K.Bhardwaj)
Versus
1. Union of India
Through its Secretary (Revenue),
Govt. of India,
Ministry of Finance, North Block,
New Delhi-110001.
e-mail - [email protected]
2. Central Board of Indirect Taxes & Customs,
Through its Chairman,
Department of Revenue,
Ministry of Finance, Govt. of India,
North Block, New Delhi-110001.
[email protected]
3. The Directorate General, HRD,
Central Board of Indirect Taxes & Customs,
Ministry of Finance,
HRM-1 Wing, 2nd & 3rd Floor,
Bhai Vir Singh Sahitya Sadan,
Gole Market,
New Delhi-110001.
[email protected]
... Respondents
(By Advocate: Mr. R K Jain with Ms. Nidhi Jain, Mr. Ravi
Prakash, CGSC with Mr. Yasharth Shukla and Mr. Aman
Rewaria)
3 OA No.2977/2023
ORDER
By Hon'ble Manish Garg, Member (J) MA No.3477/2023 This MA has been filed by the applicants under Rule 4 (5) of Central Administrative Tribunal (Procedure) Rules, 1987 seeking permission of this Tribunal for joining together in single OA. For the reasons stated in the MA and also in the interest of justice, MA is allowed. The applicants are permitted to file the accompanied OA jointly. OA No.2977/2023
In the present OA, the applicant is seeking following reliefs:
"i) To quash and set aside the impugned order dated 15.07.2023 to the extent the applicants claim for promotion to the post of Assistant Commissioner, Central Excise & Customs/JTS has not been considered by calculating the vacancies of Assistant Commissioner, Central Excise & Customs/JTS by following „vacancy based roster‟ as per the statutory Recruitment Rules DOP&T instructions dated 19.01.2007 as well as judgment of Hon‟ble Supreme Court of All India Federation of Central Excise vs. Union of India & Ors., 1999 (3) SCC 384.
ii) To declare the action of respondents in not calculating the vacancies in JTS for the year 2020, 2021 & 2022 strictly as per OM dated 07.01.2007 and the ratio as prescribed in Rule 5 (4)(a) and Rule 5 (4)(b) of Recruitment Rules as illegal and direct the respondents to reallocate the vacancies arising during 2020, 2021 & 2022 in the ratio of 13:2:1 to Superintendent of Central Excise, Superintendent of Central Excise, Superintendent of Customs (Preventive) and Customs Appraisers strictly as per Rule 5 (4)(a) and Rule 5 (4)(b) of Recruitment Rules 4 OA No.2977/2023 and promote the applicants as well as other eligible persons to JTS with all consequential benefits.
iii) To quash and set aside the impugned action of respondents in applying „post based roster‟ while distributing the vacancies in JTS/Assistant Commissioner of Customs & Central Excise for the year 2020, 2021 & 2022 and direct the respondents to distribute the vacancies in the grade of Assistant Commissioner/JTS strictly as per ratio of 13:2:1 by applying vacancy based roster.
iv) To direct the respondents to hold review DPC for the vacancy year 2020, 2021 & 2022 and consider the claim of applicants for promotion to the post of Assistant Commissioner of Central Excise & Customs/JTS by applying „vacancy based roster‟ on regular/ ad hoc basis with all consequential benefits.
v) To allow the OA with costs.
vi) Any other reliefs as this Hon‟ble Tribunal may deem fit and proper in the facts and circumstances of the case to meet the ends of justice."
2. Brief facts of the case, as projected by the learned counsel for the applicants, are that the applicants were initially appointed as Examiner/Preventive Officer (P.O.) on different dates during the years 2005 to 2009. 2.1 After completion of two years of service, they became eligible for promotion to the post of Assistant Commissioner, Central Excise & Customs/JTS along with similarly placed persons in the ratio of 13:2:1. The said ratio was to be followed by circulating the vacancies by following the vacancy-based roster. However, the respondents did not follow the same in the DPC held in January, 2023. 5 OA No.2977/2023 2.2 Aggrieved by the aforesaid arbitrary and discriminatory action of respondents, the applicants have submitted detailed representations through their Federation, which have been ignored by the respondents and they have again committed the same illegality by not calculating the vacancies of Assistant Commissioner, Central Excise & Customs/JTS by following the vacancy based roster.
2.3 Again being aggrieved by the aforesaid decision of the respondents, the applicant(s) have again submitted detailed representation, which too has been ignored. Rather, on the contrary, the respondents have initiated the process to fill up the vacancies of 2023 also in violation of statutory Recruitment Rules (RRs), DoP&T OM in this regard. Although no specific date for convening the meeting of the DPC has been notified, but the applicants have reliably learnt that the same is likely to be held shortly in the month of September, 2023 itself.
3. Pursuant to the notices issued by the Tribunal, the respondents entered appearance and filed their reply, thereby vehemently opposing the claim of the applicants. It is submitted that in the Cadre Restructuring of 2013, a total of 2118 temporary posts of Assistant Commissioner were created and notified through correspondence dated 6 OA No.2977/2023 18.12.2013. These posts were created for a period of 05 years which is coming to an end on 18.12.2025.
3.1 It was further decided to fill up these posts on ad-hoc basis. No reservation roster was prepared and the vacancies arising in the said year were distributed amongst the three feeder grades of Superintendents of Central Excise, Superintendents of Customs Preventive and Customs Appraisers in the ratio of 13:2:1. The reservation was also worked out on the basis of percentage prescribed for SC/ST i.e., 15% and 7.5% respectively. The department faced number of litigations relating to reservation in promotion for SCs and STs and therefore there was not only delay in conduct of DPC but the benefit of own merit reservation could not be provided to the SC/STs. This was against the policy of the Government. Accordingly, when the DoP&T came up with the new guidelines vide OM dated 12.04.2022, in terms of the judgment of the Hon‟ble Supreme Court in the case of Jarnail Singh and others v. Lachmi Narain Gupta and others, (2022) 10 SCC 595, the answering respondents prepared a roster for the first time and conducted a DPC in January, 2023 for the vacancy year 2020 and 2021.
3.2 It is further submitted that while preparing the roster, it was noted that the DOP&T guidelines of 12.04.2022 provided that the unit of operation of roster would be the cadre for 7 OA No.2977/2023 which quantifiable date would have to be collected and applied with regard to filling up of vacancies in the roster. The aforesaid OM also provided that the reservation roster should be maintained as per the instructions/guidelines laid down in DOP&T OM dated 02.07.1997, which provide that there should be separate rosters for direct recruitment and for promotions when reservation in promotion applies and the number of posts in each roster shall be equal to the number of posts in a cadre.
3.3 It is further submitted that the Hon‟ble Supreme Court in the case of Jarnail Singh (supra) while deciding the issue of unit for collecting quantifiable data for preparation of the roster also considered their decision in R.K. Sabharwal and Others v. State of Punjab and others, (1995) 2 SCC 745 and observed as under:
"18. The second point relates to the implementation of the roster in the form of "running account" year to year. Roster points were fixed in a lot of 100 posts. This Court held that once 14 per cent posts earmarked in the roster are filled up, the result envisaged by the instructions is achieved. Thereafter, there is no justification for operating the roster. This Court observed that the "running account" is to operate only till the quota provided by the instructions is reached and not thereafter. The vacancies arising in the cadre, after the initial posts are filled, will have to be filled from amongst the category to which the post belonged in the roster.
19. In M. Nagaraj (supra), this Court observed that the appropriate Government has to apply cadre strength as a unit in the operation of the roster in order to ascertain whether a given class/group is adequately 8 OA No.2977/2023 represented in the service. Cadre strength as a unit also ensures that the upper ceiling limit of 50 per cent is not violated. Following the law laid down in R.K. Sabharwal (supra), this Court in M. Nagaraj (supra) further held that the roster has to be post-specific and not vacancy based."
3.4 It is further submitted that in terms of the aforesaid observations made by the Hon‟ble Supreme Court in the case of Jarnail Singh (supra), the vacancies arising in the feeder grades were allotted to be filled from amongst the category to which the posts belong in the roster. In support of their contentions, the respondents have relied upon the following decisions of the Hon‟ble Supreme Court:
i) R.K. Sabharwal (supra). ii) All India Federation of Central Excise v. Union of India & Ors., (1999) 3 SCC 284.
iii) M. Nagraj & Ors. v. Union of India & Ors., (2006) 8 SCC 212.
iv) Jarnail Singh (supra).
3.5 On the basis of the aforesaid submissions the
respondents have prayed that the OA is liable to be dismissed being devoid of any merit.
4. The applicants have filed their rejoinder, more or less reiterating their averments made in the OA. 9 OA No.2977/2023
5. We have heard learned counsel for the parties and have gone through the pleadings on record, including the judgments relied upon by the learned counsel for the respondents.
6. Analysis:
6.1 Before adverting the issue in hand, we would like to discuss relevant Rule position issued by DOP&T from time to time, on subject of "calculation of vacancies".
6.2 PREPARATORY ACTION FOR HOLDING DPCs 6.2.1 Determination of regular vacancies and size of the select panel -
It is essential that the number of vacancies in respect of which a panel is to be prepared by a DPC should be estimated as accurately as possible. For this purpose since action is to be initiated in advance, the vacancies to be taken into account should be clear vacancies arising in a post/grade/service in the relevant vacancy year due to retirement, regular long term promotion and deputation. As regards vacancies arising out of deputation, only those cases of deputation for period exceeding one year should be taken into account, due note, however, being kept also of the number of the deputationists likely to return to the cadre and who have to be provided for. Purely short term vacancies 10 OA No.2977/2023 created as a result of officers proceeding on leave, or on deputation for a shorter period, training etc. should not be taken into account for the purpose of preparation of a panel. In cases where there has been delay in holding DPCs for a year or more, vacancies should be indicated year- wise separately.
[Para 4.1 of O.M. NO. 22011/5/86-Estt.(D) dated 10.04.1989] 6.2.2 Where there are a number of feeder grades with a fixed quota, the zone of consideration will be applicable separately with reference to the number of posts going to the quota of a particular feeder grade. Where no fixed quota is prescribed, a common eligibility list shall be prepared limited to the zone of consideration as above.
[Paras 2.2.1 and 2.2.2 of O.M. No. .20011/1/2008-Estt.(D) dated 11.11.2010] 6.2.3 Appointments from the panel shall be made in the order of names appearing in the panel for promotion.
Where sufficient number of officers with the required benchmark grade are not available within the zone of consideration, officers with the required bench mark will be placed on the panel and for the unfilled vacancies, the appointing authority should hold a fresh DPC by considering 11 OA No.2977/2023 the required number of officers beyond the original zone of consideration.
6.2.4 Preparation of Year wise panels by DPC where they have not met for a number of years Where for reasons beyond control, the DPC could not be held in any year(s), even though the vacancies arose during that year (or years), the first DPC that meets thereafter should follow the following procedures :-
(i) Determine the actual number of regular vacancies that arose in each of the previous year(s) immediately preceding and the actual number of regular vacancies proposed to be filled in the current year separately.
(ii) Consider in respect of each of the years those officers only who would be within the field choice with reference to the vacancies of each year starting with the earliest year onwards.
(iii) Prepare a „Select List‟ by placing the select list of the earlier year above the one for the next year and so on.
[Para 6.4.1 of O.M. No. 22011/5/86-Estt.(D) dated 10.04.1989]
(iv) With respect to point (ii) above, it is clarified that it is necessary to include those persons who were in 12 OA No.2977/2023 position during the relevant vacancy year but have retired before holding the DPC. This is considered imperative to identify the correct zone of consideration for the relevant year(s). Such retired officials would, however, have no right for actual promotion. The DPC(s) may, if need be, prepare extended panel(s) as per principles prescribed in O.M. dated April, 9, 1996. [O.M. No. 22011/4/98-Estt.(D) dated 12.10.1998 and O.M. No. 22011/1/2014-Estt.(D) dated 14.11.2014] 6.2.4 Cases of occurrence of additional vacancies in a year Where a DPC has already been held in a year and further vacancies arise during the same year due to death, resignation, voluntary retirement etc. or because the vacancies were not intimated to the DPC due to error or omission on the part of the Department concerned, the following procedure should be followed :
(i) Vacancies arising due to death, voluntary retirement, new creations, etc., clearly belong to the category, which could not be foreseen at the time of placing facts and material before the DPC. In such cases, another meeting of the DPC should be held for drawing up a panel for these vacancies as these vacancies could not be anticipated at the time of holding the earlier DPC. If, for any reason, the DPC cannot 13 OA No.2977/2023 meet for the second time, the procedure of drawing up of year-wise panels may be followed when it meets next for preparing panels in respect of vacancies that arise in subsequent year(s).
(a) With regard to the zone of consideration, the eligibility list for the supplementary DPC and whether officers who are included in the panel by the original DPC or in the extended panel but could not be promoted as these anticipated vacancies do not actually become available could be appointed against the additional vacancies later becoming available for the same vacancy year. These issues have been examined in consultation with UPSC and the following is decided.
(b) The zone of consideration, in case of holding supplementary DPC, shall be fixed as indicated hereinabove keeping in view total number of vacancies arising in a particular vacancy year i.e. vacancies accounted in Original DPC + additional vacancies becoming available subsequently during the same year.
(c) The eligibility list for supplementary DPC shall be prepared by removing the names of all such officers who have already been assessed by earlier DPC as „fit‟, „unfit‟ or placed 14 OA No.2977/2023 in the sealed cover by the original DPC before placing the same for consideration by the supplementary DPC.
(d) The officers who have already been empanelled or placed in the extended panel but could not be promoted due to these vacancies not actually becoming available; need not be re-
assessed by the supplementary DPC as the assessment matrix remains the same. They may be appointed against the additional vacancies of the same vacancy year as per recommendations of the earlier DPC. In such situation the number of vacancies for supplementary DPC shall be accordingly adjusted.
(e) While calculating the regular vacancies for a DPC, it is incumbent upon administrative department to ensure that there is no arbitrariness in calculation of anticipated vacancies.
[O.M. No. 6.4.2(i) of O.M. No. 22011/5/86-Estt.(D) dated 10.04.1989 and O.M. No. 22011/2/2014-Estt.(D) dated 30.01.2015]
(ii) The second type of cases of non-reporting of vacancies due to error or omission (i.e. though the vacancies were there at the time of holding of DPC meeting but they were not reported to it) results in injustice to the officers concerned by 15 OA No.2977/2023 artificially restricting the zone of consideration. The wrong done cannot be rectified by holding a second DPC or preparing a year wise panel. In all such cases, a review DPC should be held keeping in mind the total vacancies of the year.
[O.M. No. 6.4.2(ii) of O.M. No. 22011/5/86-Estt.(D) dated 10.04.1989] 6.2.5 Order in which promotions to be made Promotion of whatever duration should as far as possible be made in the order in which the names of the officers appear in the panel. Exception to this rule may be necessary where a large number of vacancies are to be within a comparatively short period or it is convenient / and desirable to make postings with due regard to the location and experience of the officers concerned or where short term vacancies have to be filled on local and ad-hoc basis.
[Para 17.2 of O.M. No. 22011/5/86-Estt.(D) dated 10.04.1989]
7. We would also like to reproduce the extracts of Rules, regulating the method of recruitment to various Group „A‟ posts of Indian Revenue Service (Customs and Central Excise), 16 OA No.2977/2023 Department of Revenue, Ministry of Finance as follows:
"2 (h) "regular service", in relation to any grade, means the period or periods of service in that grade rendered after selection according to the prescribed procedure for regular appointment to that grade and includes any period or periods-
(i) taken into account for the purpose of seniority in the case of those appointed at the initial constitution of the Service;
(ii) during which an officer would have held a post in that grade on regular basis but for being on leave or otherwise not being available for holding such posts;
3. Constitution of Service.- (1) There shall be constituted a Service known as the Indian Revenue Service (Customs and Central Excise) Group „A‟ consisting of persons appointed to the Service under rule 5. (2) All the posts included in the Service shall be classified as Group „A‟ posts. (3) The Service shall, on the date of commencement of these rules, consist of officers who have already been appointed to the Indian Customs and Central Excise Group „A‟ in the various grades as specified in Schedule I on a regular basis.
7.1 Future maintenance of the Service.-
(1) The vacancies in any of the grades specified in Schedule I shall be filled in the manner as hereinafter provided in this rule.
(2) Fifty per cent of the vacancies in Grade VIII (Junior Time Scale) i.e. Assistant Commissioner of Customs and Central Excise shall be filled by direct recruitment on the basis of the results of the Examination conducted by the Commission in the manner specified in Schedule II.
(3) Fifty per cent of the vacancies in Grade VIII (Junior Time Scale) i.e. Assistant Commissioner of Customs and Central Excise shall be filled by promotion from amongst the Group „B‟ officers in the Central Excise, Customs and Narcotics Department, who have completed two years of regular service in any of the following feeder cadres, namely:- 17 OA No.2977/2023
(i) Superintendents of Central Excise in the Central Excise Department and District Opium Officer or Intelligence Officers or Superintendents (Executive) in the Narcotics Department;
(ii) Superintendents of Customs (Preventive) in the Customs Department; and
(iii) Appraisers of Customs in the Customs Department.
NOTE: For the purpose of making promotion from Group „B‟ to Group „A‟, from amongst the categories of officers mentioned in clause (i) of sub-rule 3, a combined eligibility list of Superintendents of Central Excise and District Opium Officers of Intelligence Officers or Superintendent (Executive) in the Narcotics Department shall be prepared with reference to the date of completion by the officers of the prescribed qualifying service in the respective grade or post. (4) (a)The vacancies to be filled by promotion shall be filled out of the three Group „B‟ categories of the officers mentioned in sub-clauses (i), (ii) and sub-clause (iii) of sub-rule 3 of rule 5 in the ratio of 13:2:1 respectively for each bunch of sixteen vacancies.
(b) Out of sixteen vacancies, the first thirteen vacancies shall be filled from amongst the officers referred to in sub-clause (i) of sub-rule (3), the 14th and 15th vacancies shall be filled from amongst the officers referred to in sub-clause (ii) of the said sub-rule (3) and the 16th vacancy shall be filled from amongst the officers referred to in sub-clause (iii) of sub-rule (3).
(5) The appointments in the Service to Grade VII (Senior Time Scale) i.e. Deputy Commissioner of Customs and Central Excise and above shall be made by promotion form amongst the officers in the next lower grade with the minimum qualifying service as specified in column (4) of Schedule III. (6) (a) The promotion of officers, except to the Junior Administrative Grade (Non-Functional Selection Grade) shall be made by „selection‟ on the basis of the recommendations of the Departmental Promotion Committee constituted in accordance with Schedule IV.
(b) The placement to the Junior Administrative Grade (Non- Functional Selection Grade) shall be on seniority basis subject to fitness or suitability based on the recommendation of the Departmental Promotion Committee specified in column (3) of Schedule IV.
SCHEDULE III 18 OA No.2977/2023 Rule 5 8 Assistant Fifty per cent by Fifty per cent of the Commissioner of direct recruitment vacancies in the Customs and through Civil Junior Time Scale Central Excise Services (Grade VIII) shall (Junior Time Examination be filled by Scale) (Grade VIII) conducted by the promotion in Commission; Fifty accordance with per cent by sub-rule (3) of rule 1249 sanctioned promotion 5 and sub-rule (4) posts of rule 5 from amongst the following categories of Group „B‟ officers in the Central Excise, Customs and Narcotics Department who have completed two years regular service in any of the following feeder Cadres, namely:-
(a) Superintendents of the Central Excise in the Central Excise Department and District Opium Officer or Intelligence Officers or Superintendents (Executive) in the Narcotics Department in the pay band -2, Rs.
9300-34800 with
grade pay of Rs.
4800;
(13)emphasis on
quota ratio
(b) Superintendents
of Customs
19 OA No.2977/2023
(Preventive) in the
Customs
Department in the
pay band-2, Rs.
9300-34800 with
grade pay of Rs.
4800;
(3) emphasis on
quota ratio
and
(c) Appraisers of
Customs in the
Customs
Department in the
pay band -2, Rs.
9300- 34800 with
grade pay of Rs.
4800.
(1) emphasis on
quota ratio
8. The above Rules of instructions read harmoniously to each other would depict and draw following inference:-
8.1 Fifty per cent of the vacancies in Grade VIII (Junior Time Scale) i.e. Assistant Commissioner of Customs and Central Excise shall be filled by promotion from amongst the Group „B‟ officers in the Central Excise, Customs and Narcotics Department, who have completed two years of regular service in any of the three feeder cadres.20 OA No.2977/2023
8.2 There would be bunching of quota in ratio of 13:2:1 from following feeder cadres:-
(i) Superintendents of Central Excise in the Central Excise Department and District Opium Officer or Intelligence Officers or Superintendents (Executive) in the Narcotics Department;
(ii) Superintendents of Customs (Preventive) in the Customs Department; and
(iii) Appraisers of Customs in the Customs Department.
8.3 For the purpose of determining fitness or suitability for promotion is that the minimum "qualifying service" must be on a regular basis in any of the three feeder cadres. 8.4 Quota of 13:2:1 is birth mark of three feeder categories. 8.5 The purpose of introduction of ratio of 13:2:1 is that recruits from all three sources integrated into one class and no discrimination could thereafter be made in favour of recruits from one source as against the recruits from the other source in the matter of promotion to JTS. 8.6 We find that quota in the ratio of 13:2:1 i.e. 16 post(s) does not dilute the promotional avenues. What meant by the said defined parameters is that from three feeder cadre while calculating the vacancies for higher post out of which 13 are to be filled from Superintendents of Central Excise in the 21 OA No.2977/2023 Central Excise Department and District Opium Officer or Intelligence Officers or Superintendents (Executive) in the Narcotics Department, 02 from Superintendents of Customs (Preventive) in the Customs Department, and Appraisers of Customs in the Customs Department. If the respondents are filing 10 posts out of 16 from then remaining shall be carry forwarded and added to next DPC. The said 6 vacancies would have remained unfilled due to either in-adequate numbers found to be eligible or did not meet the requisite bench mark. Likely, same reasoning would be there for other two quotas.
8.7 In State of Jammu & Kashmir vs. Triloki Nath Khosa & Ors.,1974 AIR 1, 1974 SCR (1) 771, it was held as under:-
"It is not safe to test the constitutionality of a service rule on the touch stone of fortunes of individuals. No matter with what care, objectivity and foresight a rule is framed, some hardship, inconvenience or injustice is bound to result to some members of the service. The paramount consideration is the reconciliation of conflicting claims of two important constituents of Service, one of which brings fresh blood and the other mature experience."
8.8 Even assuming that the respondent State was not diligent in carrying out the proper quantifiable data of existing working strength in different categories and ascertaining the vacancies position under different categories, 22 OA No.2977/2023 it needs no reiteration that a wrong cannot be corrected by committing another wrong.
8.9 In Dwarka Prasad & Ors. v. Union of India & Ors., (2003) 6 SCC 535, the argument examined was that the promotion opportunities have to be provided in ratio with the strength of the feeder cadre. It was held as under:
"16. Fixation of quotas or different avenues and ladders for promotion in favour of various categories of posts in feeder cadres based upon the structure and pattern of the Department is a prerogative of the employer, mainly pertaining to the policy-making field. The relevant considerations in fixing a particular quota for a particular post are various such as the cadre strength in the feeder quota, suitability more or less of the holders in the feeder post, their nature of duties, experience and the channels of promotion available to the holders of posts in the feeder cadres. Most important of them all is the requirement of the promoting authority for manning the post on promotion with suitable candidates. Thus, fixation of quota for various categories of posts in the feeder cadres requires consideration of various relevant factors, a few amongst them have been mentioned for illustration. Mere cadre strength of a particular post in the feeder cadre cannot be a sole criterion or basis to claim parity in the chances of promotion by various holders of posts in feeder categories."
8.10 The promotion has to be effected in terms of statutory rules and in absence thereof, as per the executive instructions.
8.11 The select list of Custom Appraisers is prepared from merit list amongst them and rearranged in order of 23 OA No.2977/2023 seniority. It ensures that the candidates falling within the zone of consideration are short listed for promotion but ultimate promotion from amongst the selected candidates is on the basis of their respective seniority. Where the applicants stand in the seniority list, is not even spelt out.
8.12 There is nothing on record to show where do the applicants stand in seniority list. The respondents have as per Annexure -I, Annexure-II, Annexure -III have made an endeavour to adjust the vacancies in respective quota and still under process to do needful. There is nothing on record to show that there has been breaking down of quota i.e. 13:2:1. No material on record has been shown which can be said to be illegal, arbitrary and discriminatory so as to attract the violation of either Article 14 or Article 16 of the Constitution and /or to say that any of the juniors from Custom Appraiser(s) have been promoted ignoring their claim. 8.13 The power of the State to take a policy decision, as a result whereof, an employee's chance of promotion is diminished cannot be a subject-matter of judicial review as no legal right is infringed thereby. A. Satyanarayana & Ors. v. S. Purushotham & Ors. (2008) 5 SCC 416. 24 OA No.2977/2023 8.14 The calculation of vacancies for quota i.e. 13:2:1 is best to be left within the domain of executive and scope of interference in judicial review is very limited.
9. Applicants are aggrieved by the impugned order dated 15.07.2023 wherein the officers mentioned in Annexure A-1, A-2 & A-3 have been promoted to the post of Assistant Commissioner of Customs & Indirect Taxes in PB-3 with Grade Pay of Rs.5400 (pre-revised) on ad hoc basis with immediate effect and until further orders, against temporary posts in the grade of Assistant Commissioner of Customs & Indirect Taxes created as a result of cadre restructuring of CBEC (now CBIC) in the year 2013 for a period of 5 years, extended till 18th December, 2023.
9.1 As can be seen from the impugned order itself, the said promotions are subject to outcome of SLP (Civil) No.30621/2011 (Jarnail Singh and others vs. Lachhmi Narain Gupta and others) and all other connected matters pending before the Hon‟ble Supreme Court where the next date of hearing is 09.01.2024.
9.2 We find that as per impugned order dated 15.07.2023, 556 officers mentioned in Annexure-I are promoted from feeder cadre of Superintendent of Central Excise to the post Assistant Commissioner of Customs & Indirect Taxes on 25 OA No.2977/2023 purely ad hoc basis. As per Annexure A-II, 96 officers are promoted from feeder cadre of Superintendent of Customs (Preventive) to the post Assistant Commissioner of Customs & Indirect Taxes on purely ad hoc basis. As per Annexure-III, 30 officers are promoted from feeder cadre of Custom Appraisers to the post Assistant Commissioner of Customs & Indirect Taxes on purely ad hoc basis.
9.3 As can be seen from the minutes of DPC held on 11.01.2023, the Committee was informed that in the Cadre Restructuring of CBEC (now CBIC) in the year 2013, the Union Cabinet approved creation of 2118 temporary posts in the grade of Assistant Commissioner for a period of 5 years i.e. till 18th December, 2018 in order to address the stagnation in the feeder cadres and also to cope up with the increased work load. These temporary posts were approved to be filled 100% by promotion only. The DOP&T subsequently approved that the promotion on ad-hoc basis should be made in terms of DoP&T OM No.28036/1/2012- Estt.(D) dated 03.04.2023. These 2118 temporary posts in the grade of Assistant Commissioner were extended for a period of 03 years upto 18.12.2021 and further for 02 more years up to 18.12.2023 by the Competent Authority, i.e. Department of Expenditure. The last meeting of the DPC for ad-hoc promotion against temporary posts of Assistant 26 OA No.2977/2023 Commissioner for the vacancy years 2018 and 2019 was held on 21st and 22nd December, 2020. Based on the assessment of the DPC, 968 officers were promoted to the grade of Assistant Commissioner (Temporary) vide Office Order No.156/2020 dated 24th December, 2020. Since December, 2020, no meeting of DPC could be held due to legal impediments in conduct of DPCs which included interim/final orders of this Tribunal on "Catch-up rule", "Own Merit Reservation", "Implementation of N.R.Parmar Judgement" and "counting of previous years" service in Inter-Zonal Transfer". 9.4 We have also carefully gone through the minutes of the DPC where the vacancies as per the roster for the vacancy years 2020 and 2021 are specified in tabulated form:
Vacancy Year 2020 Total No. of Vacancies: 728 Sr. Feeder Cadre UR SC ST Total No. 1 Superintendent of Central 534 42 45 621 Excise & GST 2 Superintendent of Customs 58 6 0 64 (Prev.) 3 Customs Appraisers 44 1 -2 43 Total 636 49 43 728 Vacancy Year 2021 Total No. of Vacancies: 499+118* Sr. Feeder Cadre UR SC ST Total No. 1 Superintendent of 280+92* 78+3* 23-3* 381+98* Central Excise & GST 2 Superintendent of 44+3* 21+1* 14 79+4* Customs (Prev.) 27 OA No.2977/2023 3 Customs 24+16* 6 7 37+16* Appraisers Total 348+111* 105+4* 44-3* 497+118* *Vacancies arising due to retirement/VRS of officers who were recommended against panel year 2020.
9.5 As per roster, two officers of Scheduled Tribe category in the cadre of Custom Appraiser who were occupying point beyond the quota were adjusted in the vacancy year 2021.
9.6 We also have note of the fact that the present applicants are the Appraisers. The pleadings on the part of the applicants are based on the vague assertions. Presumably, the applicants drew a reference to Table-B to support their case, which is reproduced as under:
Table-B No. Of Vacancies for the year 2020 728 S. Feeder Cadre Ratio No. Of Wrong No. Posts as allotment per ratio of posts as per PBR 1 Superintendent of 13/16 592 621 Central Excise 2 Superintendent of 2/16 91 64 Customs (Preventive) 3 Customs Appraiser 1/16 45 43 No. Of Vacancies for the year 2021 1227 S. Feeder Cadre Ratio No. Of Wrong No. Posts as allotment per ratio of posts as per PBR 1 Superintendent of 13/16 997 1002 Central Excise 2 Superintendent of 2/16 153 143 Customs (Preventive) 3 Customs Appraiser 1/16 76 82 28 OA No.2977/2023 No. Of Vacancies for the year 2022 682 S. Feeder Cadre Ratio No. Of Wrong No. Posts as allotment per ratio of posts as per PBR 1 Superintendent of 13/16 554 556 Central Excise 2 Superintendent of 2/16 85 96 Customs (Preventive) 3 Customs Appraiser 1/16 43 30 9.7 The main contention urged is the applicability of arbitrary criteria and calculating the vacancy as per the RRs.
9.8 It has also not been highlighted by the applicants in the category of Annexure A-III, i.e. Custom Appraiser being feeder cadre where do the applicants stand in the seniority in the category of Custom Appraiser. Neither they made out a case or assertion that any junior in the Annexure A-III, i.e. list of Custom Appraiser was promoted on ad hoc basis nor any junior to them have been promoted or 30 officers in Custom Appraiser have been made party to the present proceedings.
It is contended that while calculating the vacancy the respondents have broken down the quota, i.e. ratio of 13:2:1. At this stage, it would be very premature to say that the aforesaid quota has been broken down as it is also undisputed that as per the minutes of the DPC dated 20.02.2017 the vacancies have been carried forward from time to time.
29 OA No.2977/20239.9 Further, by subsequent development vide Office Order No.171/2023 dated 10.10.2023 again name of the officers mentioned in Annexures A-I, II & III (including Custom Appraiser) have been further promoted on ad hoc basis to the grade of Assistant Commissioner of Customs & Indirect Taxes.
9.10 We also observe that vide notification dated 22.04.2016, the rules were amended and the sanctioned strength for regular appointment to the post of Assistant Commissioner of Customs & Indirect Taxes in Junior Time Scale was 1249. What can be seen apparently is that as on 10.10.2023 more than 532 number of officers have been granted ad hoc promotions which exceeds the sanctioned number. The same may be due to the carry forward of vacancies for the past years., meaning thereby that the calculation of vacancies as per the minutes cannot be said to be not in consonance with the ratio 13:2:1 and therefore, strictly speaking, it cannot be assumed that there has been breaking out of the quota as such. Even otherwise, a representation dated 21.08.2023 is pending adjudication before the Competent Authority amongst the respondents preferred by the applicants. The same has to be taken to its logical conclusion. 30 OA No.2977/2023
10. CONCLUSION 10.1 In view of the above, the relief(s) sought in the present OA cannot be acceded to, accordingly, OA stands dismissed. 10.2 Consequently, MA No.3478/2023 also stands disposed of.
10.3 No order as to costs.
(Manish Garg) (Tarun Shridhar) Member (J) Member (A) „SD‟