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LATEST HAPPENINGS

AIFSC/MUM/AM/39/2009

16.10.2009

To
Shri V. Sridhar,
Chairman,
Central Board of Excise & Customs,
North Block, New Delhi - 110 002.

Sub: Unjust Promotion ratio vis-à-vis Appraisers - reg.

Respected Sir,

We have made numerous representations on the subject issue of unjust ratio of promotion of our cadre vis-à-vis the Appraisers. We were promised by the Board vide Board’s letter F. No. C-18011/1/2001-Ad-II dated 15th October 2001 (copy enclosed) to reconsider the issue, but even in last eight years, nothing is done.

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

In 1989, the issue of inter-se seniority, for the promotion to the post of Assistant Collector, 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 Supdts of Central Excise, Supdts 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 Collectors. Thus, the apportionment between Central Excise & Customs was proposed as 2:1. The posts falling to the share of the Customs Dept were proposed to be apportioned further between the feeder cadres of Customs viz. Supdts of Customs (Preventive) and Appraisers of Customs on the basis of the respective cadre strengths of the two feeder cadres. In the year 1989, the cadre strength of the Supdt of Customs was 287 and that of Appraisers was 581. However, the Ministry proposed the ratio for promotion between Supdts of Customs and Appraisers 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 Supdts of Central Excise, Supdts of Customs and Appraisers in the ratio of 6:1:2 respectively for every 9 posts available.

2. The Hon’ble Supreme Court had accepted that said proposal of the Ministry and vide its decision dated 22.11.96 in WP 306/88, 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, in the year 1996 and 1997, the Ministry itself having realized that there was severe stagnation in the Customs Preventive Officers, abolished 543 posts of Preventive Officers and upgraded those posts to Supdts of Customs and promoted those many Preventive Officers to Supdts of Customs. No such exercise was carried out for the Examiners as they were way ahead of the Preventive Officers in the matters of promotion.

4. The change in the cadre strength was duly reflected in the 1998 brochure published by the Directorate of Organization and Management Services, Central Excise & Customs showing strength of the Superintendents of Customs as 1608 while that of Appraisers as 723.

5. On the basis of such substantial increase of the cadre of the Supdts of Customs, the Supdts of Customs approached the Hon’ble Supreme Court on 17.01.1998 through I.A. 6 & I.A. 7 in the W.P. 306/88 seeking increase of our ratio for promotion vis-à-vis the Appraisers. The Hon’ble Supreme Court disposed of the I.A. 6 & I.A.7 in the order dated 22.2.1999 reported in All India Federation of Central Excise Vs. Union of India (1999) 3 SCC 384 with the following observations:

“.....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 I.A. is not the proper remedy. …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 therefore and take the necessary steps for such modification.

.....But IA No. 6 is dismissed leaving it to the applicants to make out a case for change of the quota and take appropriate steps as the applicants may deem fit. We express no opinion as to the merit of such claim. The above matters are all disposed of as stated above.”

6. On 23.3.98, the Ministry, notified the Indian Customs and Central Excise Service Group `A’ (Amendment) Rules, 1998, on the basis of the above stated rotational quota system in which we were given 1 and the Appraisers were given 2 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.

7. During 1998-99, we made several pleas to the Board to reconsider the matter and properly amend the Indian Customs and Central Excise Group ‘A’ (Amendment) Rules, 1998 in light of the observation of the Hon’ble Apex Court as mentioned above. But the UOI did not pay any heed. In 1999, we approached the Central Administrative Tribunal, Mumbai by way of Original Application No. 495/99.

8. In 2001, the Hon’ble Central Administrative Tribunal after hearing the Supdt. of Customs, Appraisers and the UOI, in an order dated 10.7.2001 passed in O.A.485/99 & 556/1999, upheld the grievance of the Supdt. of Customs for a change of quota and directed the UOI “to consider the grievance of Supdt. of Customs and Appraisers within a period of three months providing them with just and fair opportunity of their representation to the post of Assistant Commissioner of Customs and thereafter to fill the existing vacancies.”

9. The UOI did not file any appeal against the order of the CAT, Mumbai, but went ahead making promotions in the old ratio disregarding the judgment. Advice of the DOPT and the Ministry of Law in the matter were also ignored. Thus, Contempt Petition No. 107/2001 in O.A. 485/99 was filed against the erring officials of UOI. The Hon’ble CAT, Mumbai upheld the contempt and issued notices to the contemnors.

10. Being aggrieved by the contempt notice and the contempt proceedings initiated by the Hon’ble CAT, Mumbai, the contemnors i.e. 2 officials of UOI filed SLP (Civil) No. 6173/2002 in the Hon’ble Supreme Court on 08.03.2002 challenging the validity of the order of CAT, Mumbai in the Contempt Petition, but the Hon’ble Supreme Court declined to intervene and passed the order on 13.03.2002 stating “Taken on Board. It is not necessary to intervene at this stage.”

11. The contemnors also took shelter behind the Direct Recruit Appraisers Association, who simultaneously filed Writ Petition No. 1324/2002 in the Hon’ble Mumbai High Court on 07.03.2002 against the order dated 13.2.2002 passed by Hon’ble CAT, Mumbai. The Hon’ble Mumbai High Court though issued notice to hear only the contempt proceedings, it dragged the whole issue and in its judgment dated 19.12.2002 not only set aside the order of the Hon’ble CAT, Mumbai in the Contempt Proceedings, but also held that the quota was determined by the Hon’ble Apex Court it was beyond the jurisdiction of the CAT, Mumbai to entertain the O.A.485/99. This judgment of the Hon’ble Mumbai High court suggested as if the Hon’ble Apex Court had erred in passing the judgment in the said I.A. 6 and I.A. 7 as stated above.

12. Being aggrieved by the judgment of the Hon’ble Mumbai High Court, the Supdts of Customs filed an SLP (Civil) 7445/2003 before the Hon’ble Supreme Court against the said judgment of the Hon’ble Mumbai High Court. The SLP was admitted and thereafter it was converted into Civil Application No. 1198 of 2005, which has now been listed in the Terminal Cause List of the Hon’ble Supreme Court.

13. An alarming stage has reached where Examiners of 1988 batch (now Appraisers) and the Preventive Officers of 1975 batch (now Superintendents of Customs) are simultaneously being considered for promotion to the post of Assistant Commissioner indicating the disparity of 13 years between two comparable cadres in the matters of promotion.

14. As you are aware, that the first phase of journey started in 1988 in the Writ Petition 306 of 1988 before the Hon’ble Supreme Court and it came to an end in 1996 with the pronouncement of judgment earmarking the policy of promotion through a quota system. The second phase of journey strated from the door of Hon’ble Supreme Court in 1996 and after making a full circle in 12 years from 1996 to 2009 via Board, Hon’ble CAT, Mumbai and Hon’ble High Court, Mumbai, the matter, seeking implementation of just and fair quota for us, remaining unresolved, has returned to door of the Hon’ble Supreme Court in Civil Application 1198/2005. Board is yet to file a reply, in spite of notices issued since 2005-06.

In view of the foregoing, it is humbly requested that the Board may file an unbiased and judicious reply at the earliest so that the case can find an end before the retirement of the Superintendents of Customs, who initiated the matter.

Thanking you,

Yours Faithfully,

(ANUPAM MAJUMDAR)
PRESIDENT

Encl: As above.