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AIFSC/MUM/AM/04/2009

25.02.2009

To
The Member (P&A),
Central Board of Excise & Customs,
North Block, New Delhi - 110 002.

Sub: Unjust ratio for promotion - reg.

Respected Sir,

Kindly refer to our numerous representations on the subject issue, in which all the forums including the judiciary could see our demands as fair and just. But only our Board remained nonchalant to such injustice and continued to inflict it on us gravely damaging our promotional prospects ignoring its own written promises made in two letters F.No. C.50/21/99-Ad. II dated 16th July, 1999 and F.No. C-18011/1/2001-Ad-II dated 15th October 2001 (Copies enclosed) to reconsider the issue.

In view of the above circumstances, a brief on the issue is submitted below for your kind perusal:-

In the year 1989, the issue of inter-se seniority, for the promotion to the post of Assistant Commissioner, amongst the three feeder cadres was pending for decision with the Hon’ble Supreme Court. The Ministry had come out with a proposal before the Hon’ble Court for granting promotions to the Superintendents of Central Excise, Superintendents of Customs and Appraisers of Customs. The proposal to apportion the vacancies for promotion among the feeder cadres of Central Excise and Customs was based on the number of Central Excise Group `A’ posts vis-à-vis the number of Customs Group `A’ posts which were then 66% and 33% respectively of the total cadre strength of the post of Assistant Commissioners. Thus, the apportionment between Central Excise & Customs was proposed as 2:1. The posts falling to the share of the Customs Department were proposed to be apportioned further between the feeder cadres of Customs viz. Superintendents of Customs (Preventive) and Appraisers of Customs on the basis of the respective cadre strengths of the two feeder cadres i.e., as existed in 1989. In the year 1989, the cadre strength of the Superintendent of Customs was 287 and that of Appraisers of Customs was 581. However, the Ministry proposed the ratio for promotion between Superintendents of Customs and Appraisers of Customs as 1:2. Therefore, the total ratio was proposed at 6:3 between Central Excise and Customs, which was further elaborated to make the promotion among the feeder cadres i.e. the Superintendents of Central Excise, Superintendents of Customs and Appraisers of Customs in the ratio of 6:1:2 respectively for every 9 posts available, the first six would go to Superintendent of Central Excise, the seventh to the Superintendent of Customs and the eighth and ninth to the Appraisers.

2. The Hon’ble Supreme Court had accepted that said proposal of the Ministry and vide its decision dated 22.11.96, the Hon’ble Court put a stamp of authority on that proposal. The said judgment is reported as All India Federation of Central Excise Vs. Union of India – 1997(1) SCC 520: JT 1997 (10) SC 630.

3. However, prior to the decision of the Hon’ble Supreme Court, i.e. in the year 1996, the Ministry itself having realized that there was severe stagnation in the Customs Preventive Cadres abolished 543 posts of Preventive Officers and upgraded them to the post of Superintendents of Customs on 10.09.1996. The change therefore had been contemplated and a decision to bring about the change had been decided much earlier to 10th September, 1996 when it was actually made effective. Hence, even though the Ministry was aware of the massive increase in the cadre strength of the Superintendents of Customs which had increased to more than twice of what it was in the year 1989, the Ministry, strangely did not inform this changed position to the Hon’ble Supreme Court although the matter of promotions based on cadre strengths of the two Group `B’ cadres viz. Superintendents of Customs and Appraisers of Customs was sub-judice and pending before the Hon’ble Supreme Court at that point of time.

4. On 23.3.98, the Ministry went ahead and notified the Indian Customs and Central Excise Service Group `A’ (Amendment) Rules, 1998, on the basis of the above stated rotational quota system despite the fact that as on 1.1.1998 the cadre strength of the Superintendents of Customs was 1608 while the strength of the Appraisers of Customs stood at 723 only.

5. The Preventive Association has taken up, time and again, the issue of change in the quota, making it 2:1 between Superintendents of Customs and Appraisers due to the existing cadre strengths, which is as per the proposal made before the Hon’ble Supreme Court by the Ministry. However, there has not been any positive response from the Ministry so far. You will appreciate that it is well settled law 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 Vs. State of Mysore [1976(2) SCC 901 (at 910)], quotas which are fixed can only be altered by a fresh determination of the quota.

6. As mentioned in the 1st para above that in response to our representations, it was first communicated to us by the Board vide letter F.No. C.50/21/99-Ad. II dated 16th July, 1999 that “…Even otherwise a further exercise to restructure the Group C & B cadres as also of cadre review are under consideration. As such, any proposal for change in ratio for promotion to IC&CES, Group A can be considered after such an exercise is over.” However, nothing has been done so far though the said cadre restructuring was over in the year 2002.

On another of our representations, the then Joint Secretary (Admn.) had replied and given assurance vide letter F.No. C-18011/1/2001-Ad-II dated 15th October 2001 that “….The Whole matter has been considered in the light of the judgment of the Hon’ble Tribunal. It is found that officials who would have been appointed in the grade of Supdts of Customs (P) against the additional posts as a result of restructuring in 1996 and 1997 are not yet ripe for promotion to Group ‘A’. Need and justification for change in Recruitment Rules and ratio of 6:1:2 can be examined when these officers appointed against upgraded post in 1996-97 become due for promotion…” However, no notification changing the Recruitment Rules has been issued so far despite the fact that the Superintendents of Customs (Preventive) of 1996 batch, not only has fallen under the consideration zone for promotion, but they have actually been promoted vide the order F.No. A-32012/28/2007 Ad-II dt 30.01.09.

7. The cascading effect of this lop-sided promotions has now resulted in a situation where Examiners (one of the main feeders cadres for Appraisers) of the 1983 batch have been promoted as Appraisers (Gr B) and further as Assistant Commissioners (Gr `A’) while Preventive Officers (feeder cadre for Superintendents of Customs) of the 1975 batch are still working as Superintendents of Customs (Gr B) and are awaiting their promotion to the cadre of the Asst. Commissioners (Gr A). Many of these examiners were clerks/TAs and worked under the Prev. Officers/Supdts and now have become their boss. This situation has affected the discipline in the field formations among these two cadres. An alarming stage has reached where Examiners of 1988 batch (since been promoted as Appraisers) are being considered for promotion along with the comparable cadre of Preventive Officers of 1975 batch (since been promoted as Superintendents of Customs) to the post of Assistant Commissioner.

In view of the above, it is humbly submitted that the said Recruitment rules may be suitably amended in the light of our increased cadre strength vis-à-vis the Appraisers and also to keep a provision in the rules to review the situation in every three years

Thanking you,

Yours Faithfully,

(ANUPAM MAJUMDAR)
PRESIDENT

Copy To: The Joint Secretary (Admn), CBEC, North Block, New Delhi.