To
The Chief Commissioner,
Customs & Central Excise (CZ)
Sector-17-E, Chandigarh
Sir,
Sub:- Filling up of Seven posts
of Superintendents of Central Excise lying vacant in the strength of Cadre Controlling Authority,
Chandigarh Zone, Chandigarh on ad hoc basis
– reg.
Respectfully it is submitted that the Departmental
Promotion Committee while concluding its findings over recruitment to the posts
of Superintendents of Central Excise for Recruitment year 2012-13 has found
that Eleven vacancies of Superintendents, reserved for ST Candidates, are lying
vacant for quite some time now. Out of these
eleven vacancies, four vacancies have been filled consequent to conclusion of
the DPC Proceedings and seven vacancies will continue to remain vacant till
April, 2017 as no eligible ST candidate is available for promotion. According to the latest Seniority List i.e. as
on 13.07.2012 of the Inspectors, the name of the 1st Scheduled Tribe
Candidate who will be eligible for promotion to Grade of Superintendent appears
at Sl. No. 442 and he will be completing his qualifying service only in the
month of April, 2017. Since there is no
direct recruitment in the cadre of Superintendents, these seven vacancies are
likely to remain vacant for a minimum period of five years from this
recruitment year onwards.
2. The post of Superintendent of Central
Excise is purely for feeder cadre and thus if all the vacancies reserved for ST
candidates are carried forward, these will remain vacant for a longer period
which can not be afforded due to the following reasons:
i) The increased workload at the newly
created Integrated Check Post at Attari in Customs (Preventive)
Commissionerate, Amritsar
ii) The increased workload at the newly
designated International Airport at Chandigarh
under the Administrative Jurisdiction of Central Excise Commissionerate, Chandigarh
iii) The increased workload at the Container
Freight Stations at Ludhiana
iv) The increased trade at the Trade
Facilitation Centres falling under the jurisdiction of Customs & Central
Excise Commissionerate, J&K;
v) The increased workload on account of
implementation of Negative List regime in the Service Tax w.e.f. 01/07/2012.
The Association is aware of the
initiatives taken by your kind office in representing the need of additional
staff strengths to the Board Office in some of the cases mentioned above. The Association expresses heartfelt thanks to
your kind honour for caring staff matters.
3. In view of the foregoing facts, the
Association wishes to draw your kind attention to the contents of Para 3(i) of
the Government of India, Ministry of Personnel, Public Grievances and Pensions,
Department of Personnel & Training letter No. 28036/8/87-Estt.(D) dated
30.03.1988 (copy
attached as Annexure-I)
circulating instructions on Ad hoc appointments, which reads as under:
“3. If the prescribed instructions and
procedure are strictly adhered to, it may be seen that there will be very few
cases where appointments need to be made on ad hoc basis. Such circumstances may be:
i.
where
there is an injunction by a Court/Tribunal directing that the post may not be
filled on a regular basis and if the final judgment of the Court/Tribunal is
not expected early and the post also can
not be kept vacant.
ii.
………
iii.
………”
Further, Para 4 of the said letter
dated 30.03.1988 lays down that such ad hoc appointments may be resorted to and
subjected to certain conditions. It has
been made very clear in condition (iii) of the said letter that where ad hoc appointment
is by way of promotion from the feeder Cadre, it may be done on the basis of
Seniority cum fitness, which has been the basis for promotion by selection as
is being adopted while issuing promotion orders of Superintendents in this
Cadre Controlling Authority.
Also, condition (v) of the said
letter clearly lays down that where the appointing authority is not the
Ministry, the authorities competent to approve ad hoc appointments may be
decided by the Administrative Ministries themselves. The Competent Authority so authorised by the
Ministry should be one level higher authority than the appointing
authority. It is pertinent to mention
here that the Appointing Authority for the post of Superintendent of Central
Excise is the Commissioner and your kind honour, being one level higher
authority, is fully competent to approve ad hoc appointment against these seven
posts.
4. As per recent Judgment of Hon’ble
Supreme Court of India in the case of M Nagaraja and in the case of U.P State Power Corporation
Vs Rajesh Kumar & Others ( CA No.2608 of 2011), there is no Reservation in
Promotion. That the issue with regard to reservation in promotion came up
before the Hon’ble Punjab and Haryana High Court in the case of Lachhmi Narain
Gupta and others Vs. Jarnail Singh and others – CWP No.13218 of 2009 decided on
15.7.2011 wherein the Hon’ble High Court relying upon the judgments of the Apex
Court referred to above held that there cannot be any reservation in the matter
of promotion unless the exercise as laid down in the judgments is carried out
by the Government of India. Admittedly
no such exercise has been carried out. That the Hon’ble Central Administrative
Tribunal, Chandigarh Bench, in various cases relying upon the judgments of Apex
Court has ruled that there cannot be any reservation in the matter of promotion
unless the exercise as detailed in the judgments of Apex Court is carried
out. In one case relating to O. A. No.
38/PB/2011 decided on 2.5.2012 – Rajesh Rai and another Vs. Union of India, the
Hon’ble Tribunal quashed the reservation to be given in the matter of
promotion.
5. The Hon’ble Central Administrative Tribunal, Chandigarh
Bench in O. A. No. 840/PB/2012 in the case of one Manoj Kumar Sharma & Ors.
Vs Union of India, while deciding the same issue, has passed interim injunction
that the respondents in the case shall not proceed with the impugned promotions
except in the circumstances laid down by the Hon’ble Apex Court
However, even if
for the sake of argument it is presumed that there is reservation in promotion,
even then the first ST Candidate will be available for promotion in April, 2017
only and these vacancies can not be kept vacant for such a long period.
Respected Sir, the filling up of
these seven vacancies assume much importance as the matters of sanction of
additional staff strength for Integrated Check Post at Attari; International
Airport at Chandigarh and for clearance of import/export cargo at CFS Ludhiana
etc. etc. are still pending with Board Office.
At the same time, there are seven vacancies as on date against which the
eligible candidate will be available only in April, 2017. Therefore, keeping in view the above
submissions your kind Honor is requested to kindly fill up the vacancies on ad
hoc basis keeping in view the provisions of Department of Personnel &
Training letter No. 28036/8/87-Estt.(D) dated 30.03.1988, which will otherwise
remain vacant for more than five years.
The Association wishes to be
heard in person in the matter on any of the convenient dates which may please
be conveyed to the undersigned.
Yours faithfully,
Sd/-
ENCLS.
AS ABOVE
(RAMESH CHAND SHARMA)
President, AICEIA,
COPY
TO:
1.
THE COMMISSIONER,
CENTRAL EXCISE COMMISSIONERATE, CHANDIGARH -I/CHANDIGARH-II/LUDHIANA/JAMMU
& KASHMIR AND CUSTOMS (PREVENTIVE) COMMISSIONERATE, AMRITSAR
2.
THE GENERAL SECRETARY,
AICEIA CHANDIGARH
CIRCLE , CHANDIGARH
3.
THE
PRESIDENT/SECRETARY GENERAL, ALL INDIA
CENTRAL EXCISE INSPECTOR’S ASSOCIATION, KOLKATA FOR INFORMATION PLEASE.
NOTICE BOARD, HEADQUARTERS AT
CHANDIGARH/LUDHIANA/AMRITSAR & JAMMU