Sunday, September 30, 2012
LETTER BY OUR PRESIDENT TO HON'BLE CC
The Chief Commissioner,
Customs & Central Excise (CZ)
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,
ii) The increased workload at the newly designated
International Airport at Chandigarh
under the Administrative Jurisdiction of Central Excise Commissionerate, -I; Chandigarh
iii) The increased workload at the Container Freight Stations at
stressing additional staff strength to meet the requirements of speedy
clearance of the export/import cargo; 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.
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 and in the cases
mentioned above, qua the reserved category.
Your kind office may agree that the outcome of the court case is not
expected in near future.
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.
ENCLS. AS ABOVE
(RAMESH CHAND SHARMA)
1. THE COMMISSIONER, CENTRAL EXCISE COMMISSIONERATE,
& KASHMIR AND CUSTOMS (PREVENTIVE) COMMISSIONERATE, FOR INFORMATION PLEASE. AMRITSAR
2. THE GENERAL SECRETARY,
FOR INFORMATION AND RECORDS PLEASE. AICEIA CHANDIGARH
3. THE PRESIDENT/SECRETARY GENERAL, ALLNOTICE BOARD, HEADQUARTERS AT CHANDIGARH/LUDHIANA/AMRITSAR & JAMMU
CENTRAL EXCISE INSPECTOR’S ASSOCIATION, KOLKATA FOR INFORMATION PLEASE.