Central Administrative Tribunal - Delhi
Pritam Dahiya vs Revenue on 15 July, 2025
1
Item No. - (C-II)
O.A. No. 2977/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 2977/2023
Reserved on : 15.05.2025
Pronounced on : 18.07.2025
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. B. Anand, Member (A)
1. Pritam Dahiya, (Promotion to JTS), Group 'A'
Appraiser,
Age 39 years,
S/o Shri 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
Aged About 46 years,
S/o Shri Salek Chand
R/o 277B, Durga Puri Extension,
Shahdara, Delhi - 110093.
3. Rakesh Kumar Mishra, (Promotion to JTS), Group 'A
Appraiser
Aged about 45 years,
S/o Sh. Daya Nand Mishra,
R/o House no. 69/3, CPWD Quarters
Thirumangalam Anna Nagar, Chennai-600040.
4. N Kishore Reddy, (Promotion to JTS), Group 'A'
Appraiser
R/o E1 T4, VGN Minerva, G Guruswamy Street,
Aged About 41 yearS,
S/o Sh. N.Varada Reddy,
Nolambur, Chennai - 600095.
5. Girish Yadav, (Promotion to JTS), Group 'A'
Appraiser
Aged About 41 years,
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Item No. - (C-II)
O.A. No. 2977/2023
S/0 Shri Omprakash Yadav
R/o No. 39, S&P Residency, Rajakupppam,
Vanagram, Chennai-95.
6. Sangeetha G, (Promotion to JTS), Group 'A
Appraiser
Aged About 45 years,
W/o Shri 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
2. Central Board of Indirect Taxes & Customs
through its Chairman,
Department of Revenue,
Ministry of Finance, Govt. of India,
North Block, New Delhi - 110001.
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.
...Respondents
(By Advocates: Mr. Ravi Prakash with Mr. Yasharth Shukla and
Mr. R.K. Jain)
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Item No. - (C-II)
O.A. No. 2977/2023
ORDER
By Hon'ble Mr. B. Anand, Member (A) The present OA has been filed by the applicants, 5 in number, all Customs Appraisers, who are aggrieved by the action of the respondents in deciding to fill up the post of 'Assistant Commissioners' on the principle of 'post based reservation' instead of 'vacancy based reservation'.
2. The background to this controversy is that in the year 2013, the respondents, with a view to alleviate the stagnation being experienced by the three feeder categories of 'Superintendent of Central Excise, Superintendent of Customs (Preventive) and Customs Appraisers, decided to create 2118 posts of 'Assistant Commissioners', which are to be filled up 100% by promotion instead of 50% by promotion and 50% by direct recruitment as envisaged by the Recruitment Rules, as these 2118 posts were originally created in the year 2013 on temporary basis for five years upto year 2018 and thereafter the duration of the posts were extended further upto 31.12.2025. The apportionment of the posts of 'Assistant Commissioners' among the three feeder categories as mentioned above has a long chequred history dating back to the year 1989, interspersed with litigation in various judicial fora. The 4 Item No. - (C-II) O.A. No. 2977/2023 department in the year, 1989 had come out with a scheme ensuring equitable distribution of promotional opportunities among the above three categories and the same was allowed by the Hon'ble Supreme Court.
3. Initially, the quota for the three feeder categories were fixed as 6:1:2, i.e., in a cycle of nine vacancies, which have to be filled up, first six will be given to Superintendent of Central Excise, one will be given to Superintendent of Customs (Preventive) and two will be given to Customs Appraisers.
4. Evidently, even at that time, a controversy arose that after these posts have been initially filled up, whenever vacancies arise off and on, what should be the method to be followed by the department in filling up those vacancies. Should it be 'post based' or should it be 'vacancy based'.
5. The matter went upto the Hon'ble Supreme Court, which finally ruled in the matter of All India Federation of Central Excise v. Union of India & Ors., 1999 3 SCC 384 that apportionment of promotional post should be 'vacancy based' and not 'post based'.
6. Now, for filling up the 2118 temporary posts of 'Assistant Commissioners', initially a DPC was convened on 21-22.12.2020 and based on the assessment of the DPC, 968 officers were 5 Item No. - (C-II) O.A. No. 2977/2023 promoted and thereafter the latest DPC was conducted on 11.01.2023 and based on that DPC, which is the impugned order dated 15.07.2023 was issued promoting 682 officers. As mentioned above, the applicants herein, who are 5 Customs Appraisers aggrieved by the impugned order dated 15.07.2023, made a representation dated 21.08.2023 stating that the judiciary have consistently held that the apportionment of the promotional posts of 'Assistant Commissioners' among three feeder categories of Superintendent of Central Excise, Superintendent of Customs (Preventive) and Custom Appraisers should be 'vacancy based and not post based'. The respondents are yet to dispose of the representation dated 21.08.2023 and subsequent reminders given by the applicants, forcing them to approach this Tribunal by way of filing an Original Application No. 2977/2023 seeking a ruling from the Tribunal as to whether the promotional post of 'Assistant Commissioner' should be filled up by the respondents on the principle of 'post based' or 'vacancy based'. The Tribunal vide its order dated 19.12.2023 did not give a clear-cut ruling on this aspect of 'post based' vs. 'vacancy based', and on the ground that the representation dated 21.08.2023 of the applicants is still pending adjudication before the respondents left it to the respondents to take the representation dated 21.08.2023 to its 6 Item No. - (C-II) O.A. No. 2977/2023 logical conclusion and dismissed the OA. The applicants filed an appeal against the judgment of this Tribunal dated 19.12.2023 before the Hon'ble High Court of Delhi, which vide its order dated 18.01.2024 remitted the matter back to the Tribunal requesting the Tribunal to "specifically deal with the grievance of the petitioners regarding 'post based roster' being wrongly adopted by the respondents as against the 'vacancy based roster' as claimed by the five applicants .
7. With this above background, the applicants by way of a second round of litigation have come before the Tribunal in the present OA seeking the following relief(s) under Section 19 of the Administrative Tribunals Act, 1985:-
"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 Customs (Preventive) and Customs Appraisers strictly as per Rule 5 (4) (a) and Rule 5 (4) (b) of Recruitment Rules and promote the applicants as well as other eligible persons to JTS with all consequential benefits.7
Item No. - (C-II) O.A. No. 2977/2023
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 for the year 2020, 2021 & 2022 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/adhoc basis with all consequential benefits.
v) To allow the OA with costs."
8. Learned counsel for the applicants submits that no final seniority list for the post of 'Appraiser' has been notified by the respondents from 2014 onwards and they have used the seniority list of 'Appraisers' dated 02.08.2013 only to fill up 2118 posts of 'temporary Assistant Commissioners'. He further states that although they have acquired the eligibility of two years of regular service as required for promotion to the post of `Assistant Commissioner of Central Excise & Customs (JTS)' as stipulated in Indian Revenue Service (Customs & Central Excise), Group 'A' Rules 2016, they are yet to be promoted as Assistant Commissioners. He also states that when the additional 2118 posts of Assistant Commissioners were initially created in 2013, these posts were required to be filled up according to the provisions of the Indian Revenue Service 8 Item No. - (C-II) O.A. No. 2977/2023 (Customs & Central Excise), Group 'A' Rules, 2012, which have been subsequently replaced by the Indian Revenue Service (Customs & Central Excise), Group 'A' Rules, 2016 (hereinafter referred to as 'the Recruitment Rules'). He states that the respondents are required to calculate the vacancies in the post of Assistant Commissioners of Customs & Central Excise as on 1st January of the respective year and thereafter fill up those posts strictly in the ratio of 13:2:1 from amongst Superintendent of Central Excise, Superintendent of Customs (Preventive) and Customs Appraiser, respectively. He states that the respondents have calculated the vacancies year-wise and filled up the same strictly as per the then prevailing Recruitment Rules, 2012 when the additional 2118 Group 'A' posts were created in the year 2013 initially for a period of five years and subsequently extended further till 31.12.2025. While prior to 2020, the respondents were filling up the posts strictly according to the vacancies that they have calculated year-wise as per the judgment of the Hon'ble Supreme Court in All India Federation of Central Excise (supra), it is only now in the year 2020, for filling up the vacancies caused subsequent to filling up of the 2118 temporary posts that were created in 2013, they had simply divided these posts in the ratio of 13:2:1 among the three feeder cadres and sought to fill them up as evidenced by the minutes of the Departmental Promotion Committee convened for 9 Item No. - (C-II) O.A. No. 2977/2023 considering promotion for vacancy year 2020-2021; and by doing so, the respondents are ensuring that the vacancies arising from promotion to a particular feeder cadre have been allotted for promotion of officers belonging to only that particular feeder cadre. He further adds that in other words, the vacancies arising in the posts from Assistant Commissioners cadre due to promotion, retirement or otherwise of Superintendent of Customs and Central Excise (JST) cadre have been earmarked for promotion from the officers of Superintendent of Customs and Central Excise (JST) only. Similarly, vacancies arising in the Assistant Commissioners cadre on account of promotion/retirement or otherwise 'Superintendent of Customs (Preventive)' and 'Customs Appraisers' have been earmarked only for officers of 'Superintendent of Customs (Preventive)' and 'Customs Appraiser', whereas the Recruitment Rules provide that all the vacancies arising in the grade of 'Assistant Commissioner' (irrespective of the feeder cadre) has to be filled in the ratio of 13:2:1 among all the feeder cadres. Thus, he contends that promotion to the post of 'Assistant Commissioner' has not been done strictly as per the 'Recruitment Rules, 2016' which reads as under:-
"Fifty per cent of the vacancies in the Junior Time Scale (Grade VIII) shall be filled by promotion in accordance with sub-rule (3) 10 Item No. - (C-II) O.A. No. 2977/2023 of rule 5 and sub-rule (4) of rule 5 from amongst the following categories of Group B' officers in the Central Excise, Customs Completed two years regular service in any and Narcotics Department who have 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;
(b) Superintendents of Customs (Preventive) in the Customs Department in the pay band-2, Rs. 9300-34800 with grade pay of Rs. 4800; and
(c) Appraisers of Customs in the Customs Department in the pay band -2, Rs. 9300-34800 with grade pay of Rs. 4800."
9. Learned counsel for the applicants states that for the vacancy year 2020 & 2021, the DPC has prepared the below table by following the 'post based roster':-
Table - A Year 2020 PR Roster (2118 AC Temporary posts) for the vacancy year 2020 Total UR SC ST CX CP CA CX CP CA CX CP CA a. No. of post 2118 1134 205 102 258 40 20 129 20 10 and share of entitlement b. Working 1390 800 147 58 216 34 19 84 20 12 Strength c. Vacant 728 534 58 44 42 6 1 45 0 -2 Posts Year 2021 PR Roster (2118 AC Temporary posts) for the vacancy year 2021 Total UR SC ST CX CP CA CX CP CA CX CP CA a. No. of post 2118 1134 205 102 258 40 20 129 20 10 and share of entitlement b. Working 891 520 103 34 138 13 13 61 6 3 Strength c. Vacant 1227 814 102 68 120 27 7 68 14 7 Posts 11 Item No. - (C-II) O.A. No. 2977/2023
10. He further contends that if these posts are filled up strictly according to the 'Recruitment Rules' by adopting the principle of 'vacancy post based', as contended by the applicants then following will be the position:-
Table - B No. of vacancies for the year 2020 728 Sl. no. Feeder Cadre Ratio No. of posts Wrong allotment of as per ratio 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 Sl. no. Feeder Cadre Ratio No. of posts Wrong allotment of as per ratio 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
11. Learned counsel for the applicants contends that the post- based roster prepared for the vacancy year 2020 & 2021 is contrary to the Recruitment Rules to the extent that instead of only providing the vacancies to be filled by UR, SC & ST category i.e. roster points, the post-based roster has prescribed reservation points in each feeder cadre i.e. Superintendents of Central Excise, Superintendents of Customs (Preventive) & Appraiser of Customs. This fixation of quota for feeder cadres is resulting in inappropriate distribution and 12 Item No. - (C-II) O.A. No. 2977/2023 allocation of vacancies contrary to what has been mandated by the 'Recruitment Rules'.
12. Learned counsel for the applicants contends that this controversy has been put to rest by a detailed judgment of the Hon'ble Supreme Court in the matter of All India Federation of Central Excise v. Union of India & Ors., 1999 3 SCC 384 and if only respondents strictly implement the judgment of the Hon'ble Apex Court, then their grievances will not arise. He, in particular, drew our attention to the following paragraphs from the above judgment of the Hon'ble Apex Court:-
"15. A like situation arose in State of Punjab V. Dr R.N. Bhatnagar, That was again a case of recruitment by promotion to the posts of Professors from the category of Additional Professors and also by way of direct recruitment, in the ratio of 3:1. The Additional Professors who represented the promotee feeder group having a quota of 3 vacancies in the cadre of Professors contended that whenever a Professor retired, one has to find out whether he was a promotee or a direct recruit. If the vacancy was created by retirement of a promotee, then the said vacancy in the promotional cadre had to be filled only by a promotee from the lower cadre and not by way of direct recruitment. Reliance for the said contention was placed by the promotees on Sabharwal case. This Court distinguished Sabharwal case as relating to a scheme of reservation and observed that in a System of quota between promotees and direct recruits, once the posts in the higher cadre were filled, thereafter if vacancies arose (say) by retirements, then it was not permissible to treat the vacancy as a vacancy earmarked for the category to which the retiree belonged before being promoted or recruited. Once the recruitment was made from two channels, the birthmarks got erased as stated in State of J&K v. Triloki Nath Khosa. In Dr Bhatnagar case Majmudar, J. observed (at p. 652) as follows:
"The quota of percentage of departmental promotees and direct recruits has to be Worked out on the basis of the roster points taking into consideration vacancies that fall due at a given point of time. As stated earlier, as the roster for 3 promotees and one direct 13 Item No. - (C-II) O.A. No. 2977/2023 recruit moves forward, there is no question of filling up the vacancy created by the retirement of a direct recruit by a direct recruit or the vacancy created by a promotee by a promotee. Irrespective of the identity of the person retiring, the post isto be filled by the onward motion of 3 promotees and one direct recruit."
The position in regard to the quota of 6:1:2 in the case before us is no different.
16. For the aforesaid reasons, we are unable to agree with the contention of learned Senior Counsel for the writ petitioners, Smt Shyamla Pappu.
17. Learned Senior Counsel for the writ petitioners furnished some data by way of tabular statements to show that those in Group A promoted from Superintendents of Excise Group B are a diminishing number and are never 6 out of 9 in the promoted post. But, in our view, that is not the way of looking at the problem in a case of ordinary quota as distinct from a scheme of reservation. The procedure indicated in the Government of India's proposals dated 8-6-1989 in para 6.3 appears to us to be the correct one. We have already referred to it. It says that if vacancies arise in the Group A posts (towards the 50%quota of promotees as distinct from 50% quota for direct recruits to Group A) they are to be filled up from among the three feeder categories, the first six Superintendents Central Excise in Group B, the vacancies by Superintendents and the eighth and ninth the Customs Appraiser group. That completes one cycle. The seventh vacancy Customs (P). The further vacancies as and when they arise in Group A are to be filled again by following the same procedure.
18. There was a grievance raised by the writ petitioners that pending consideration of names by the UPSC for promotion to Group A, ad hoc promotions have been made to Group A and members from the first feeder category, namely, Superintendents of Excise Group B were not promoted. This was particularly so after the earlier judgment. In other words, the complaint is that for the said ad hoc promotions, the quota rule of 6:1:2 has not been followed. The answer of the Union of India in this behalf is that it has been found that earlier there have been excess promotions to Group A from the petitioners' category of Excise Superintendents Group B and, therefore, presently, more officers from the other two feeder channels have been promoted on an ad hoc basis so that there will be no imbalance when the final review takes place. Even assuming that for purposes of ad hoc promotions it would have been fair to follow the ratio of 6:2:1, the respondents have shown adequate justification for not following the said ratio while making ad hoc promotions. Thus if one of these groups in the quota has had more promotions earlier and if the Government of India wants to offset the said advantage, such an action cannot be said to be unfair."
(Emphasis is ours) 14 Item No. - (C-II) O.A. No. 2977/2023
13. The second judgment relied upon by the learned counsel for the applicants in support of their claim that the promotional post of Assistant Commissioner of Customs and Central Excise will have to be filled up on 'vacancy based roster' and not 'post based roster' as done by the respondents is the decision given by the Hon'ble High Court of Madras in the case of Union of India vs. R. Chitra on 29th July, 2009 in WP(C) No. 7045/2006, wherein the Hon'ble High Court has distinguished the ratio laid down in the case of All India Federation of Central Excise(supra) and has held that 'vacancy based roster' has to be applied in the cases of adhoc promotions also and in particular, paragraphs 21, 22 and 23 of the said judgment which are as under:-
"21. Next if we see the other Judgment of the Hon'ble Supreme Court in ALL INDIA FEDERATION OF CENTRAL EXCISE which was followed in the Judgment in DR.R.N.BATNAGAR, the Hon'ble Supreme Court was dealing with the matter relating to filling up of posts in entry grade of Indian Customs and Central Excise namely Group 'A' service against 50% promotion quota and that there was three feeder categories to the said post and the vacancy in the post were to be filled up in the ratio of 6:1:2. The contention advanced before the Hon'ble Supreme Court was that when a vacancy of Group 'A' post was to arise due to retirement of a promotee Officer, it must be filled up by another promotee Officer of the Central Excise only and not by a promotee Officer of other category. The Hon'ble Supreme Court rejected the said contention and held that once Officers wherefrom three categories are promoted to Group 'A', they seized to have their birth marks of their previous categories and there would then be no question of filling up of a vacancy in Group 'A' grade by retirement of a promotee from the Department by another Officer from the same group. This is so because , one promotee Group A identity of feeder channel from such of the promotee seized to exist. In the said Judgment, the Hon'ble Supreme Court while considering the applicability of the Judgment in R.K.SABHARWAL s case held as follows:15
Item No. - (C-II) O.A. No. 2977/2023
3.Reliance by the petitioners is placed upon R.K.SABHARWAL case. That case deals with the principle that the posts vacated by an office recruited from the SC/ST category must be filled in only b the same reserved category. This is because of the special provision in Article 335 of the Constitution of India relating to adequate representation of the SCs/STs in the services. The birthmarks there remain even on promotion inasmuch as a particular number of posts in the promotional category are reserved to be filled in only from among SCs/STs. On the other hand, so far as a normal quota rule between two feeder channels for recruitment or promotion by a quota between different feeder groups (as in the case before us), the relevant precedents are Paramjit Singh Sandhu v. Ram Rakha Mal and State of Punjab v. Dr. R.N.Bhatnagar. In Paramjit Singh case which related to recruitment from among promotees and direct recruits, D.A. Desai, J. pointed out that if a quota rule between direct recruits and promotees were treated as a rule of reservation, then because of frequent retirements of the promotees who were generally closer to retirement, most vacancies in the promotional posts would repeatedly go to the aged promotees leaving little scope for direct recruitment. At p. 196, the learned Judge clarified as follows: (SCC para 6) What this Court meant while saying that when a quota rule is prescribed for recruitment to a cadre, it meant that quota should be correlated to the vacancies which are to be filled in. Who retired and from what source he was recruited may not be very relevant because retirement from service may not follow the quota rule. The learned Judge further pointed out: (SCC p.196, para 6) Promotees who come to the service at an advanced age may retire early and direct recruits who enter the service at a comparatively young age may continue for a long time. If, therefore, in a given year larger number of promotees retire and every time the vacancy is filled in by referring to the source from which the retiring person was recruited, it would substantially disturb the quota rule itself.
Therefore, while making recruitment quota rule is required to be strictly adhere to."
22. In the above Judgment, the Hon'ble Supreme Court had rejected the contention of the writ petitioners that vacancy arising due to retirement of a promotee officer belonging to a particular feeder category must be filled by that category only. It also held, the Judgment in R.K.SABHARWAL case is not applicable in such matters. It is to be noted that in the above case before the Supreme Court, the UPSC sought to justify the deviations from the ratio on the ground that the promotions were adhoc. In paragraph No.18 of the Judgment, the Hon'ble Suprme Court held that even assuming that for the purpose of adhoc promotion, it would be fair to follow the ratio of 6:2:1. Further, in the instant case, it is not the case of the respondent Department that they have not followed 16 Item No. - (C-II) O.A. No. 2977/2023 the ratio. Per contra, it is their case that the ratio has to be applied on 'Post-Based Roster' and not based on 'vacancy'. Hence, there is no justification on the part of the Department to state that since the promotions are adhoc, they would be entitled to adopt a Post-Based Roster."
23. Thus in view of the above legal position, it is to be held that the promotion has to be done in the ratio prescribed namely 3:5 based on the vacancy position and the department erroneously followed the Post- Based Roster."
14. Learned counsel for the applicants is also relying upon the judgment of this Tribunal in OA No. 3105/2021 with OA No. 46/2022 decided on 14.07.2022. In this judgment of CAT also the facts are similar to that of the present OA:-
"OA No. 46/2022
2. The applicants, herein, are working as JEs in NDMC for more than 15 years. It is submitted that the regular DPCs are not being held for their promotion to the next level of AE (Civil) for last many years. It is stated that the last DPC was held on 03.09.2013. It is the contention of the applicant that in terms of Recruitment Rules dated 03.07.1990, 75% of the posts of AE (Civil) are to filled by promotion from JE (Civil) and 25% through direct recruitment from the feeder cadre i.e., JE (Civil). Despite these clear Recruitment Rules, the respondents have issued an advertisement dated 03.01.2022 and OM dated 03.12.2021, indicating that 43 posts of AE (Civil) are to be filled by way of direct recruitment.
The total cadre strength of AE (Civil), being 111, the 25% of the same works out to 28 and not 43 and, therefore, the respondents have indicated the incorrect number of 43 posts to be filled through direct recruitment vide OM dated 03.12.2021 and the impugned advertisement dated 03.01.2022. If this promotion is undertaken through direct recruitment of 43 posts, this will adversely affect the promotional prospectus of those who are due for promotion. Aggrieved by these decisions of the respondents, the applicants have filed the present OA No. 46/2022 seeking following relief(s):-
"(a) Call for the records of the case, especially the roster register for the post of AE ( C), being maintained by respondent No.3, NDMC.
(b) Quash and set aside the Advertisement No.03/2022 dated 03.01.2022, only to the extent the same shows 43 number of vacancies of AE (C) in NDMC to be filled by Direct Recruitment as the same, as the said figure of 43 is beyond the prescribed quota of Direct Recruitment and in violation of RR's.17
Item No. - (C-II) O.A. No. 2977/2023
(c) Quash and set aside the impugned OM dated 03.12.2021 issued by DSSSB to the extent the same shows 43 number of vacancies of AE ( C) in NDMC to be filled by Direct Recruitment as the same is much more than the quota of vacancies of direct recruitment as prescribed in RR's which is only 25% of the total cadre. (d ) Direct Respondent DSSSB, to verify whether the number of vacancies for the post of AE ( C) in NDMC, to be filled up, as to whether the same are in consonance with the relevant RR's before taking any further action in pursuance of the impugned OM dated 03.12.2021, issued by it.
(e) Direct NDMC to recalculate total vacancies in the cadre of AE ( C) and fill the same as per RR's i.e.. 25% by way of Direct Recruitment and 75% by way of promotion from the feeder cadre.
(f) Direct NDMC to undertake a cadre review/restructuring exercise in the engineering department, since the engineers are being made to work without any regular promotion on higher posts on Adhoc and CDC basis, for long periods, in violation of DOPT instructions and to promote the stagnating engineers by giving one time relaxation if any required.
(g) According all consequential benefits.
(h) Awards costs of the proceedings; and
(j) Pass any other order/direction which this Hon'ble Tribunal deem fit and proper in favour of the applicant and against the respondent in the facts and circumstances of the case". The applicants, herein, are primarily seeking quashing and setting aside of the Advertisement No.03/22 dated 03.01.2022, only to the extent the same shows 43 number of vacancies of AE (Civil) in NDMC to be filled by direct recruitment and the applicants are also seeking directions to the respondents to correctly work out the vacancies in terms of Recruitment Rules i.e., 25% by way of direct recruitment and 75% by way of promotion.
9. The Recruitment Rules for the post of AE (Civil) as promulgated on 03.07.1990 vide Council Resolution No.44 prescribed method of recruitment. This method of recruitment mandates 75% to be recruited by promotion from JE (Civil) [50% diploma holders and 25% graduate, failing which by deputation and failing both by direct recruitment], and 25% by direct recruitment. These Recruitment Rules have not been changed or modified in any way till now. However, the respondents have reiterated their stand time and again that they are following the method of recruitment prescribed vide OM dated 19.01.2007, issued by Department of Personnel and Training. This method of recruitment is based on Hon'ble Supreme Court's decision rendered by the Constitution Bench in the matter of R.K. Sabharwal & Ors. Vs. State of Punjab & Ors. (1995) 2 SCC 745. The Annexure to this OM also elaborates, by illustration as to how the vacancies are to be calculated on a year-to-year basis for recruitment. The same is extracted below :- 18
Item No. - (C-II) O.A. No. 2977/2023 "Illustration Suppose sanctioned strength of a grade is 1000 and the Recruitment Rules for the grade provide that 50% of the vacancies shall be filled by direct recruitment on All India basis by open competition and 50% by promotion. Reservation for SCs, STs and OBCs in different recruitment in this case will be 15%, 7.5% and 27% respectively and in promotion reservation will be 15% for SC and 7.5% for ST.
Suppose all the 1000 posts were filled in the year 2000 of which 500 i.e. 50% of the posts were filled by direct recruitment and 500 i.e. 50% of the posts were filled by promotion. The number of reserved posts in direct recruitment quota and promotion quota in that grade in the year 2000 would be as given below:
Direct Recruitment: SCs-75 , STs-37, OBCs-135 Promotion SCs-75, STs-37 Suppose in the year 2001, a total of 200 vacancies arose in the grade, of which 50 posts were vacated by candidates from the direct recruitment quota and 150 by candidates from the promotion quota. As a result of this, the number of incumbents in the direct recruitment quota became 450 and in the promotion quota 350. Since Recruitment Rules provide for filling of 50% of the vacancies by direct recruitment and 50% by promotion, 100 vacancies in the year 2001 will be filled by direct recruitment and 100 by promotion. Thus in that year, the cadre strength for direct recruitment quota would become 550 and for promotion quota it would become 450. The number of reserved posts in the direct recruitment quota and promotion quota in that year will be as follows:
Direct Recruitment: SCs-82, STs-41, OBCs-148 Promotion SCs-67, STs-33".
According to above methodology, the total vacancies, both through direct recruitment and through promotion, shall be taken as the total every year and will be filled up as per the percentage prescribed. This would not take into account whether the number of vacancies during that year are more in one category and less in the other, but it would strictly follow the percentage prescribed for recruitment. It has also been clarified in the illustration given that although this may result in year-on-year changes in the numbers in different categories, the recruitments will have to follow these guidelines. It has been confirmed by the respondents that although the detailed methodology is not prescribed in the Recruitment Rules, the DoPT OM dated 19.01.2007, is being followed for working out and filling up the vacancies. If that is the case, then out of the 111 sanctioned posts, a total of 87 vacancies are available in 2022. The percentage should, therefore, be worked out on 87 vacancies in terms of Recruitment Rules, i.e., 75% to be filled by promotion and 25% to be filled by direct recruitment. These 19 Item No. - (C-II) O.A. No. 2977/2023 calculations are to be worked out by the Department and we will not further indulge in these calculation exercises. We have, however, taken note of the Recruitment Rules, which do not have any such methodology to be adopted. The detailed methodology, as is being adopted by the respondents in terms of the OM dated 19.01.2007, also does not establish their case of working out 43 vacancies to be filled up through direct recruitment vide Notification dated 03.01.2022. On record is Annexure R-2 of the counter filed by Respondent No. 1. This provides details at Page No. 20 of the total sanctioned posts of AE (Civil) as 111, total sanctioned post of direct recruitment as 28 and total vacant post for direct recruitment as 28, however, in the next column, the total number of vacancies requisitioned against direct recruitment is shown as 43. The respondents have not been able to clearly establish as to how this figure of 43 has been arrived at whereas total posts for direct recruitment are indicated as 28. Even in terms of Recruitment Rules, going by the total sanctioned strength of 111, the 75% posts through promotion would work out to 83 posts for promotion and 28 for direct recruitment. Further, taking into account, the present availability of AEs which is 9 in category of directly recruited and 15 in category of promoted, these vacancies could work out yet differently. Respondents have not been able to provide any logical explanation for arriving at a figure of 43.
10. We have considered both the Recruitment Rules and the OM of the DoPT and found that the contention of the respondents for following the DoPT OM dated 19.01.2007 as the methodology for filling up the vacancies in any year is acceptable and should be followed. With this, there does not seem to be any scope of further working out the roster on year-on-year basis, when the recruitments have not taken place for last many years. When the recruitments are taking place after many years, the total number of vacancies would have to be taken into account and the recruitments in both categories - direct and through promotion should be made in terms of ratio given in RRs. The respondents are directed to strictly follow the Recruitment Rules and methodology as enunciated in the DoPT OM dated 19.01.2007 and re-work the vacancies to be filled through the direct recruitment and by promotion."
(Emphasis is ours)
15. The short point made by the learned counsel for the applicants is that the controversy at hand regarding the manner of filling up of the post of 'Assistant Commissioners of Customs and Central Excise' whether it has to be 'vacancy based' or 'post based', has been settled 20 Item No. - (C-II) O.A. No. 2977/2023 by initially adopting ratio of 6:2:1 for the three feeder categories, i.e.
(i) Superintendent of Central Excise, (ii) Superintendent of Customs (Preventive) and (iii) Custom Appraiser, which ratio has now been changed as 13:2:1 after the creation of 2118 posts in 2013, otherwise the principle of filling up the posts by adopting 'vacancy based' method remains the same and, therefore, the respondents had correctly filled up these posts by following the 'vacancy based roster' in the years 2014-15, 2015-16, 2016-17, 2017-18 and 2018-19 as laid down by the Hon'ble Supreme Court in its order in the case of All India Federation of Central Excise(supra), but thereafter did not strictly follow the same principle for the subsequent years in 2020-2021, 2021-2022 and instead chose to adopt the 'post-based roster', principle, which is causing grievous injury to the applicants.
16. Learned counsel for the respondents has vehemently opposed the contentions of the learned counsel for the applicants and submits his arguments in support of the decision of the respondents to fill up the 2118 posts of 'Assistant Commissioners' on the principle of 'post- based roster' and not 'vacancy based roster' by stating that initially when the 2118 posts were sought to be filled up as these posts were only temporarily recreated, the department decided to fill up these posts on adhoc basis and, therefore, no reservation roster was prepared at that time and the vacancies arising in the said year were 21 Item No. - (C-II) O.A. No. 2977/2023 distributed among the three feeder grades of Superintendent of Central Excise, Superintendent of Customs (Preventive) and Customs Appraisers in the ratio of 13:2:1 and the caste based reservation in all these three feeder categories was also worked out on the basis of then prevalent percentage of reservation prescribed for SC and ST, i.e. 15% and 7.5% respectively, without preparing a reservation roster. This resulted in the respondents' department facing a number of litigations relating to reservation and promotions for SCs and STs resulting in delayed conduct of Departmental Promotion Committee (DPC) and also resulted in the department's inability to provide 'own merit' reservation to otherwise meritorious SC/ST people who could be accommodated in a General category if they are otherwise meritorious. This action of the department was found to be against the policy of the Government. Therefore, when the DOP&T came up with the new guidelines vide OM dated 12.04.2022 and in tune with the judgment passed by the Hon'ble Supreme Court in the case of Jarnail Singh and others v. Lachhmi Narain Gupta & Ors., reported in (2022) 10 SCC 595, the respondents prepared a 'reservation based roster' for the first time and conducted the DPC in June 2023 for the vacancy year 2020 and 2021.
17. Learned counsel for the respondents drew the attention of the Bench to the DOP&T OM No. dated 12.09.1997 and dated 12.04.2022 and stated that these OMs stipulated that unit of operation of 22 Item No. - (C-II) O.A. No. 2977/2023 'reservation roster' should be the cadre for which quantifiable data would have to be collected and applied with regard to filling up of vacancies in the roster.
18. The respondents state that they have faithfully adhered to the provisions of the above two OMs and prepared a 'reservation based roster' and accordingly divided the total number of 2118 posts in the grade of 'Assistant Commissioners' among the three feeder categories of Superintendent of Central Excise, Superintendent of Customs (Preventive) and Customs Appraisers in the ratio of 13:2:1.
19. By following the above method of 'post based reservation' the respondents have apportioned the 2118 posts in the following manner:-
Cadre UR SC ST Total
Supdt. of Central 1334 258 129 1721
Excise
Supdt. of Customs 205 40 20 265
(Preventive)
Customs 102 20 10 132
Appraisers
Total 1641 318 159 2118
20. In addition to relying upon the judgment of the Hon'ble Supreme Court in the case of Jarnail Singh (supra),the respondents have also relied upon the judgment of the Hon'ble Supreme Court in the case of R.K. Sabharwal & Ors. v. State of 23 Item No. - (C-II) O.A. No. 2977/2023 Punjab & Ors., (1995) 2 SCC 745 as also landmark judgments of the Hon'ble Apex Court on the issue of reservation in public service enunciated inthe cases of M. Nagaraj & Ors. v. Union of India& Ors., reported in (2006) 8 SCC 212. In particular, they are relying upon the judgment of R.K. Sabharwal (supra) and the DOP&T OM No. 36012/2/96-Estt. (Res.) dated 02.07.1997 issued in implementationof the R.K. Sabharwal(supra)judgment and the respondents are drawing our attention to the following paragraph in the said judgment:-
"10. We may examine the likely result if the roster is permitted to operate in respect of the vacancies arising after the total posts in a cadre are filled. In a 100- point roster, 14 posts at various roster points are filled from amongst the scheduled Casts/ Scheduled Tribes candidates, 2 posts arc filled from amongst the Backward Classes and the remaining 84 posts are filled from amongst the general category. Suppose all the posts in a cadre consisting of 100 posts are filled in accordance with the roster by 31-12-1994. Thereafter in the year 1995, 25 general category persons (out of the 84) retire. Again in the 1996, 25 more persons belonging to the general category persons (out of the 84) retire. Again in the year 1996, 25 more persons belonging to the general category retire. The position which would emerge would be that the Scheduled Casts and Backward Classes would claim 16% share out of the 50 vacancies. If 8 vacancies are given to them then in the cadre of 100 posts the reserve categories would be holding 24 posts thereby increasing the reservation from 16% to 24%. On the contrary if the roster is permitted to operate till the total posts in a cadre are filled by the same category of persons whose retirement etc. caused the vacancies then the balance between the reserve category and the general category shall always be maintained. We make it clear that in the event of non-availability of a reserve candidate at the roster-point it would be open to the State Government to carry forward the point in a just and fair manner."
21. The respondents are also drawing our attention to paras 18&19 of the Jarnail Singh's judgment stating that the Hon'ble Supreme Court while deciding the issue of unit for collecting quantifiable data 24 Item No. - (C-II) O.A. No. 2977/2023 for preparation of the roster also considered the decision of R.K. Sabharwal case (supra). The relevant paras of the judgment of the Jarnail Singh's case read 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 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.
22. Learned counsel for the respondents states that before disposing off this OA, we have to follow the principle of "audi alteram partem", i.e. no one should be condemned unheard, which is the foundational principle of natural justice and hear the arguments from other two categories of Superintendent of Central Excise (whose overwhelming numbers in the department is reflected by the allocation of thirteen posts to them in the ratio of 13:2:1) and Superintendent of Customs (Preventive).
25Item No. - (C-II) O.A. No. 2977/2023
23. In sum, learned counsel for the respondents has advanced arguments in support of their decision to apportion 2118 temporary posts of 'Assistant Commissioners', based on 'post- based' roster from among the three feeder categories by stating that the respondents have tried their best to ensure 'Social Justice' by providing adequate reservations for the SC and ST class.
24. We have given a patient hearing to both the learned counsels for the parties and with their assistance have also perused the pleadings available on record.
25. To our mind, the respondents have mixed up two issues i.e. (i) filling up the temporary 2118 posts strictly according to the Recruitment Rules, wherein the ratio of 13:2:1 is prescribed and the same has to be implemented by following the 'vacancy based roster' as stipulated in All India Federation of Central Excise (supra) and; (ii) implementation of 'Social Justice' by ensuring adequate reservation for SC and ST as laid down by the Hon'ble Supreme Court in its landmark judgments in the cases of R.K. Sabharwal & Ors.(supra), M. Nagaraj & Ors. (supra) and Jarnail Singh (supra). These judgments speak of 'Catch up Rule' in promotions, 'Own Merit Reservation' and maintenance of Roster points for 26 Item No. - (C-II) O.A. No. 2977/2023 reservation and maintenance of quantifiable data with cadre as an unit.
26. In our view, once this issue to be adjudicated in this OA has been finally settled by the judgment of the Hon'ble Apex Court in the case of All India Federation of Central Excise (supra) upholding the principle of 'vacancy based' promotions, the respondents have got no business to tinker with the same by incorporating judgments concerning reservation and social justice enumerated above which support 'post-based' promotion. Therefore, we are not enumerating and discussing in detail the various aspects of the aforementioned three judgments which pertain only to reservation and ensuring social justice in the bureaucracy, which has no relevance to the controversy ('vacancy based' or 'post-based') in hand.
27. We tend to agree with the contentions of the learned counsel for the applicants that once this issue of filling up the posts of 'Assistant Commissioners' by following the 'vacancy based roster' laid down in All India Federation of Central Excise (supra), which itself is based on an earlier detailed proposal submitted by the department for filling up these posts of 'Assistant Commissioners' from among the three feeder categories in the year 1989 was considered by the Hon'ble Apex Court and pronounced to be the correct one, this controversy 27 Item No. - (C-II) O.A. No. 2977/2023 should not have arisen again at all. Such a controversy has arisen only because of the respondents mixing up 'reservation' for SC/STs with 'promotion' for these three categories of posts. In fact, the apprehension of the department that by following 'vacancy based promotion' for filling up the 2118 temporarily created posts from among these three different categories would result in excessive representation of one category say 'Customs Appraiser', as the applicants herein are all Superintendent of Customs (Preventive), is not entirely unfounded.
28. We find that the respondents have constantly raised their apprehension that the first category of Superintendent of Central Excise constitute an overwhelming majority from among the three feeder categories and most of them are on their verge of retirement while being promoted as Assistant Commissioners, which post they occupy for a brief while before their superannuation. The 'Customs Appraisers' are relatively young and if the 'vacancy based reservation' is strictly implemented as envisaged in the Recruitment Rules, 2016 the situation will emerge, wherein the relatively younger 'Customs Appraisers' will go and occupy the post of 'Assistant Commissioners' and they will not vacate the post for a long time resulting in stagnation for Superintendent of Central Excise, 28 Item No. - (C-II) O.A. No. 2977/2023 who are anyway on the verge of retirement and facing frustration due to lack of vacancies, as the 'Customs Appraisers' are likely to occupy the post of 'Assistant Commissioners' for a longer time. In this regard, it is worth recapitulating what the Hon'ble Supreme Court had addressed this apprehension of the respondents and stated in its judgment in the case of All India Federation of Central Excise (supra). The relevant para 18 of the said judgment reads as under:-
"18. There was a grievance raised by the writ petitioners that pending consideration of names by the UPSC for promotion to Group A, ad hoc promotions have been made to Group A and members from the first feeder category, namely, Superintendent of Excise Group B were not promoted. This was particularly so after the earlier judgment. In other words, the complaint is that for the said ad hoc promotions, the quota rule of 6:1:2 has not been followed. The answer of the Union of India in this behalf is that it has been found earlier there have been excess promotions to Group A from the petitioners' category of Excise Superintendents Group B and, therefore, presently, more officers from the other two feeder channels have been promoted on an ad hoc basis so that there will be no imbalance when the final review takes place. Even assuming that for purposes of ad hoc promotions it would have been fair to follow the ratio of 6:2:1, the respondents have shown adequate justification for not following the said ratio while making ad hoc promotions. Thus if one of these groups in the quota has had more promotions earlier and if the Government of India wants to offset the said advantage, such an action cannot be said unfair."29
Item No. - (C-II) O.A. No. 2977/2023
29. Therefore, the respondents can always remedy the situation which may arise from time to time that one of the three categories are found occupying the promotional post of 'Assistant Commissioners' in excess of the feeder cadre strength by relying on the above paragraphs to remedy the situation.
30. We rely extensively upon the judgment of the Hon'ble Supreme Court in the case of All India Federation of Customs Excise (supra) as we are of the firm opinion that the facts and circumstances in the present OA are the same as that adjudicated and pronounced by the Hon'ble Supreme Court as early as in the year 1999. Accordingly, we are quoting the following paragraphs from the above judgment of the Hon'ble Supreme Court which are quite relevant for adjudicating the present case:-
"3.2 Careful thought has once again been given to find a just and fair solution with a view to resolving this long-outstanding dispute taking into account the reasonable prospects of promotion of officers of different feeder cadres. It is expected and hoped that, given the goodwill and a sense of reason on the part of all the concerned parties, it should be possible to find a solution which is just and fair, to find a solution from both the streams, namely, Customs and Central Excise.
4. With this object in view, the Board has taken stock of the nature of Group 'A' entry grade posts (Senior Superintendents/Assistant Collectors) which are the subject- matter of dispute. For this purpose, the total number of posts in the entry grade of Group 'A' Service have been divided as (i) Central Excise posts and (ii) Customs posts, on the basis of functions which each post is required to perform. Posts required to perform wholly or predominantly functions under the Central Excise posts. Similarly posts required to perform wholly or predominantly functions under the Customs Act 30 Item No. - (C-II) O.A. No. 2977/2023 have been treated as Customs posts. The ratio so arrived at has been applied for dividing the common posts in the Directorates and CEGAT. This calculation gives the ratio of 65:36 as between Central Excise and Customs posts. Since the posts and persons manning them cannot be divided into fractions, the figures have been rounded to 67:33 so as to give the workable ratio of 2:1.
5.1 The proposal is that the promotee quota vacancies in the Group 'A' grade of Senior Superintendent/Assistant Collector may be filled from Central Excise and Customs Group 'B' Officers in the ratio of 2:1, the number of vacancies falling to the share of Customs Group 'B' Officers being further apportioned between the two feeder cadres of Customs, namely, Customs Appraisers and Customs (Preventive) Superintendents in the ratio of their respective sanctioned strength (which rounded off to a workable ratio, comes to 2:1).
5.2 The need to further sub-divide the number of vacancies in the share of the Customs Group 'B' Officers between the Customs Appraisers and Customs (P) Superintendents arises because: (a) the two feeder cadres of Customs Appraisers and Customs (P) Superintendents are different and separate, (b) their seniority lists are separate, (c) whereas recruitment to Customs (P) Superintendents' grade is 100% by promotion, in the case of Customs Appraisers, it is 50% by direct recruitment and 50% by promotion, and (d) in terms of the general principles governing determination of seniority laid down by the MHA/DOP&T, where there are more than one feeder cadres, the inter se seniority of each feeder cadre is required to be maintained while preparing the seniority list in the higher grade to which promotions are to be made, which is also the promotion in the 1987 Recruitment Rules of IC & CES Group 'A'.
6.1 It is noticed that Central Excise Group 'B' Officers get their promotion to Group 'B' after having put in, by and large, very long years of service in Group 'C' and, consequently, they are of much older age group as compared to Customs Appraisers. Therefore, placing the Superintendents of Central Excise first and placing Customs Officers thereafter in the promotion panel would not present any material disadvantage to Customs Officers. The age group of Superintendents of Central Excise is, by and large, such that they would retire before their turn for next promotion to the grade of Deputy Collector comes. As of now, there is hardly any Deputy Collector of Central Excise anywhere in India who is a promotee from Group 'B' in the Central Excise; Central Excise Officers would generally retire as Assistant Collectors, thereby increasing the chances of officers of younger age group from the Customs stream for their next promotion to the grade of Deputy Collector.31
Item No. - (C-II) O.A. No. 2977/2023 6.2 By and large, similar position would be there in the case of Customs (P) Superintendents vis-à-vis direct recruit Customs Appraisers. Therefore, a reasonable placement in the combined all-India seniority list may be in the following order:
(i) Superintendents of Central Excise Group 'B'
ii) Superintendents of Customs (P) Group 'B'
(iii) Customs Appraisers 6.3 To sum up, according to the above formula, each bunch of 9 vacancies in the promotion quota for Group 'B' feeder cadres will be apportioned in the ratio 6:1:2 consisting of Central Excise Superintendents, Customs (P) Superintendents and Customs Appraisers respectively. To illustrate, if 9 vacancies exist for the promotee quota in Group 'A' entry point, the first six vacancies would go to Superintendents of Central Excise, the seventh vacancy to Customs (P) Superintendents and the eighth and ninth to Appraisers; further vacancies to be filled up on the basis of a 'cycle' in the above order.
7. For the purpose of making promotions to Group 'A' separate consideration lists of Superintendents of Central Excise on the one hand, and Appraisers (both direct recruits and promotees) and Preventive Superintendents of Customs on the other hand, would be drawn up first on all-India basis. While Group 'B' Officers of the two feeder cadres, namely, Superintendents of Central Excise and Superintendents of Customs (P) may be placed in their respective consideration lists on the basis of their continuous length of service in Group 'B', the Group 'B' Officers of the feeder cadre of Appraisers may be placed in their list on the basis of the principles of quota-rota as in the general principles laid down from time to time in the instructions of MHA/DOP&T applicable to all the services under the Union of India, circulated on 22-12-1959 and 7-2- 1986."
8. It will be noticed from para 4 of the above proposals of the Government of India dated 8-6-1989 that as between the Excise Department Officers and the Customs Department Officers, the promotions from Group B to Group A are to be in the ratio of 2:1 or 6:3, that is to say, 6 will go to promotees from Central Excise Superintendent Group B, thereafter, out of the next 3 promotions meant for the Customs Department, one will go to Superintendents (P) Customs and 2 to Customs Appraisers Group B. The order of the promotions is also set out in the ratio of 6:1:2 between Superintendents Excise, Superintendents (P) Customs and Appraisers, Customs, namely, first 6, then one and lastly two, respectively, from these three feeder channels. Para 6:1 refers to the factual aspect of the Central Excise Superintendents Group A -- 32 Item No. - (C-II) O.A. No. 2977/2023 promoted from Central Excise Superintendents Group B -- retiring frequently. Para 6.3 gives an example as to how the vacancies in Group A, as and when they arise, are to be filled.
9. In our opinion, there is no merit in the contention of the writ petitioners that at all times Group A posts must contain a ratio of 6 promotees of Central Excise Superintendents Group B for every 9 Group A posts. Such an intention does not follow from para 4 or para 6.1 of the proposals dated 8-6-1989 or the Rules as amended in 1998.
10. It will be noticed that prior to the proposals dated 8-6- 1989, there was no quota as between the three feeder groups for the purpose of promotion to Group A and it appears promotions were being made on the basis of the length of service or continuous officiation. But then, it was found over a period that such a procedure created various grievances among the three feeder groups. Therefore, introduction of a quota system was found to be necessary. Then the next question before the Department was as to what was to be the quota between the various groups. Obviously it was to be one providing an equitable distribution of Group A posts between the three feeder groups. For that purpose the Department went into the question as to the posts having distinctive functions in the two main groups, the Excise and the Customs Departments and then it went into the same question in the two sub-groups of the Customs Officers. After finding out the number of posts in the two main groups of Excise and Customs, it was obviously decided that a quota of 2:1 or 6:3 would be fair as between Excise and Customs groups and that a further sub-quota of 1:2 would be just as between the two sub-categories in the Customs Department. That was how the quota of 6:1:2 appears to have been arrived at. We are clear in our mind that, on a fair reading of the whole of para 4, that was all the purport of para 4 and it was never intended in the said para 4 that in the promoted category of Group A Officers, there should always be 6 promotees from Excise Superintendents Group B for every 9 posts in Group A.
12. The respondents are therefore right in relying on para 6.3. That para works out an example. It says that as and when vacancies arise in Group A give first 6 vacancies to 6 from Excise Superintendents Group B, then the next vacancy to Customs Superintendent (P) and then the further two vacancies to the Customs Appraisers, in that order. Thus, on an analysis of paras 4, 6.1 and 6.3, we find no conflict whatsoever between the said paras. On the other hand, they form a harmonious scheme. The result is that once officers from these three feeder categories are promoted to Group A, they cease to have their birthmarks of Group B in the promoted category of Group A. There would then be no question of filling up a vacancy in Group A created by the retirement of a promote Excise Superintendent Group B by 33 Item No. - (C-II) O.A. No. 2977/2023 another officer from the same group. This is because, once promoted to Group A, the identity of the feeder channel from which they are promoted ceases to exist.
13. Reliance by the petitioners is placed upon R.K. Sabharwal case [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] . That case deals with the principle that the posts vacated by an officer recruited from the SC/ST category must be filled in only by the same reserved category. This is because of the special provision in Article 335 of the Constitution of India relating to adequate representation of the SCs/STs in the services. The birthmarks there remain even on promotion inasmuch as a particular number of posts in the promotional category are reserved to be filled in only from among SCs/STs. On the other hand, so far as a normal quota rule between two feeder channels for recruitment or promotion is concerned, be it between direct recruits and promotees or promotion by a quota between different feeder groups (as in the case before us), the relevant precedents are Paramjit Singh Sandhu v. Ram Rakha Mal [(1982) 3 SCC 191 : 1982 SCC (L&S) 266] and State of Punjab v. Dr R.N. Bhatnagar [(1999) 2 SCC 330 : 1999 SCC (L&S) 513 : (1998) 6 Scale 642] . In Paramjit Singh case [(1982) 3 SCC 191 :1982 SCC (L&S) 266] which related to recruitment from among promotees and direct recruits, D.A. Desai, J. pointed out that if a quota rule between direct recruits and promotees were treated as a rule of reservation, then because of the frequent retirements of the promotees who were generally closer to retirement, most vacancies in the promotional posts would repeatedly go to the aged promotees leaving little scope for direct recruitment. At p. 196, the learned Judge clarified as follows: (SCC para 6) "What this Court meant while saying that when a quota rule is prescribed for recruitment to a cadre, it meant that quota should be co-related to the vacancies which are to be filled in. Who retired and from what source he was recruited may not be very relevant because retirement from service may not follow the quota rule."
The learned Judge further pointed out: (SCC p. 196, para 6) "Promotees who come to the service at an advanced age may retire early and direct recruits who enter the service at a comparatively young age may continue for a long time. If, therefore, in a given year larger number of promotees retire and every time the vacancy is filled in by referring to the source from which the retiring person was recruited, it would substantially disturb the quota rule itself. Therefore, while making recruitment quota rule is required to be strictly adhered to."
34Item No. - (C-II) O.A. No. 2977/2023
15. A like situation arose in State of Punjab v. Dr R.N. Bhatnagar [(1999) 2 SCC 330 : 1999 SCC (L&S) 513 : (1998) 6 Scale 642] . That was again a case of recruitment by promotion to the posts of Professors from the category of Additional Professors and also by way of direct recruitment, in the ratio of 3:1. The Additional Professors who represented the promotee feeder group having a quota of 3 vacancies in the cadre of Professors contended that whenever a Professor retired, one has to find out whether he was a promotee or a direct recruit. If the vacancy was created by retirement of a promotee, then the said vacancy in the promotional cadre had to be filled only by a promotee from the lower cadre and not by way of direct recruitment. Reliance for the said contention was placed by the promotees on Sabharwal case [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] . This Court distinguished Sabharwal case [(1995) 2 SCC 745 : 1995 SCC (L&S) 548 : (1995) 29 ATC 481] as relating to a scheme of reservation and observed that in a system of quota between promotees and direct recruits, once the posts in the higher cadre were filled, thereafter if vacancies arose (say) by retirements, then it was not permissible to treat the vacancy as a vacancy earmarked for the category to which the retiree belonged before being promoted or recruited. Once the recruitment was made from two channels, the birthmarks got erased as stated in State of J&K v. Triloki Nath Khosa [(1974) 1 SCC 19 : 1974 SCC (L&S) 49 : (1974) 1 SCR 771] . In Dr Bhatnagar case [(1999) 2 SCC 330 : 1999 SCC (L&S) 513 :
(1998) 6 Scale 642] Majmudar, J. observed (at p. 652) as follows:
"The quota of percentage of departmental promotees and direct recruits has to be worked out on the basis of the roster points taking into consideration vacancies that fall due at a given point of time. As stated earlier, as the roster for 3 promotees and one direct recruit moves forward, there is no question of filling up the vacancy created by the retirement of a direct recruit by a direct recruit or the vacancy created by a promotee by a promotee. Irrespective of the identity of the person retiring, the post is to be filled by the onward motion of 3 promotees and one direct recruit."
The position in regard to the quota of 6:1:2 in the case before us is no different.
17. Learned Senior Counsel for the writ petitioners furnished some data by way of tabular statements to show that those in Group A promoted from Superintendents of Excise Group B are a diminishing number and are never 6 out of 9 in the promoted post. But, in our view, that is not the way of looking at the problem in a case of ordinary quota as distinct from a 35 Item No. - (C-II) O.A. No. 2977/2023 scheme of reservation. The procedure indicated in the Government of India's proposals dated 8-6-1989 in para 6.3 appears to us to be the correct one. We have already referred to it. It says that if vacancies arise in the Group A posts (towards the 50% quota of promotees as distinct from 50% quota for direct recruits to Group A) they are to be filled up from among the three feeder categories, the first six vacancies by Superintendents Central Excise in Group B, the seventh vacancy Customs (P) Superintendents and the eighth and ninth the Customs Appraiser group. That completes one cycle. The further vacancies as and when they arise in Group A are to be filled again by following the same procedure.
22. It may be noted that as long as a particular quota is fixed by a rule, it will have to be followed till the quota fixed therein is altered by appropriate amendment of the relevant rules. As held in V.B. Badami v. State of Mysore [(1976) 2 SCC 901, 910 : 1976 SCC (L&S) 353] (SCC at p. 910) quotas which are fixed can only be altered by a fresh determination of the quota. It will be for the applicants to take such steps as they deem fit, if they feel aggrieved about the existing quota but the filing of this IA is not the proper remedy. We are also not prepared to accept that the proposals of the Government of India dated 8-6-1989 themselves visualised a constant change in the quota from time to time. Such a change, in our view, has to be done by a fresh determination and it is for the applicants to make out a case therefor and take the necessary steps for such modification."
31. Under the above facts and circumstances, although the judgment of the Hon'ble Supreme Court categorically stating that this promotional post of 'Assistant Commissioners' should be filled up only on the principle of 'vacancy based' and not 'post based' was pronounced in the year 1999, yet during the last five years since the year 2020, the department has been found to be in violation of the judgment in the case of All India Federation of Customs Excise (supra), which is 36 Item No. - (C-II) O.A. No. 2977/2023 not acceptable. Therefore, we state categorically - (i) that all promotions to the post of 'Assistant Commissioners' from the date of issue of this order, should be strictly done following the principle of 'vacancy based' as per the judgment laid down by the Hon'ble Supreme Court of India in the case of All India Federation of Central Excise (supra), and as per the DOP&T OM dated 19.01.2007; and (ii) that the department will have to simply follow the judgment of the Hon'ble Supreme Court in the case of All India Federation of Central Excise (supra) while filling up the vacancies created for filling up the temporary 2118 posts, which means that they will have to fill it on 'vacancy based' and not 'post-based', which is also the principle found in the Recruitment Rules, 2016.
32. With the above observations, we allow this OA with the following directions:-
"i) that the impugned order dated 15.07.2023 is quashed and set aside 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 37 Item No. - (C-II) O.A. No. 2977/2023 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) that 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 are declared as illegal and accordingly the respondents are directed to reallocate the vacancies arising during 2020, 2021 & 2022 in the ratio of 13:2:1 to 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 and promote the applicants as well as other eligible persons to JTS with all consequential benefits.
iii) that 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 is quashed and set aside and the respondents are 38 Item No. - (C-II) O.A. No. 2977/2023 directed to distribute the vacancies in the grade of Assistant Commissioner/JTS for the year 2020, 2021 & 2022 strictly as per ratio of 13:2:1 by applying vacancy based roster.
iv) that the respondents are directed 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/adhoc basis with all consequential benefits.
v) The aforesaid directions would be implemented as expeditiously as possible and preferably within a period of twelve weeks from the date of receipt of a certified copy of this order.
33. However, in the facts and circumstances of the case, there shall be not order as to costs.
(B. Anand) (R.N. Singh)
Member (A) Member (J)
/anjali/