Mr. G. George Paracken, Member (J) : The applicants have filed this Original Application challenging the order No.C-18011/30/2007-Ad.II dated 19.11.2010 whereby his juniors have been granted promotion to the post of Deputy Commissioner of Customs and Central Excise w.e.f. 10.12.2006. According to them, the aforesaid order is in clear violation of the directions given by the Jodhpur Bench of the Central Administrative Tribunal in its order dated 05.02.2010 in OA No.154/2004 by which the Tribunal has directed the respondents to work out details and rationalize the promotions of general category eligible candidates on vacant posts of Assistant Commissioners while following the roster/reservation quota as per prescribed norms and Government of India directives. The relevant part of said order is reproduced as under:-
7. As per respondents, total vacancies were calculated as 594 for promotion to Asstt. Commissioners posts; promotion orders issued on 10-12-02. Respondents view is that if an unreserved vacancy arises in a cadre; the SC/ST candidates cannot be denied promotion on the plea of post not reversed. The instructions of Department of Personnel and Training OM No.36028/17/2001-Est. (res) dated 11-7-02, give preferential treatment to the SC/ST candidates. But in normal conditions, with large scale of existing vacancies, the interests of general candidates should not be overlooked. The instructions relating to reservation are to be followed while making promotions, but not at the cost of general category eligible candidates. It is true that no candidate of general category junior to applicant were promoted, but promoting reserve category candidates over & above others would certainly give vent to dissatisfaction amongst these general candidates; thus promotion to the reserve (SC/ST) category candidates is not to be given in an arbitrary manner. Thus, respondents version cannot be accepted that if an un-reserved vacancy arises in a cadre; SC/ST candidate in the feeder cadre cannot be denied promotion. The general category candidate should not be by-passed on the promotion post, vacancy for unreserved category.
8. The excessive promotion to the Customs Appralsers (CAs) and other candidates beyond the prescribed quota cannot be accepted in a legal spirit. On the name of adjustments in the backlog, the prescribed norms should not be violated. Furthermore, the junior SC/ST candidates (Supdts) cannot be placed above the rank/seniority of the applicant or likewise general category candidates. Thus respondents action in not applying post based reservation/roaster for promotion is contrary to DoPT circular dated 02.7.1997 and in violation of Apex Courts judgment in the case of R.K. Sabharwal Vs. State of Punjab & Others 1995 AIR (SC) 1371 and All India Federation of Central Excise Vs. Union of India & Ors. 1996 (67) ECR 685 (SC). The directions of Apex Court in the case of Ajit Singh Januja & Ors. vs. State of Punjab & Ors. 1996 AIR (SC) 1189 have not been followed by the respondents in its letter and spirit as promotion roaster is not suitably adopted. The Apex Court in the case of Ajit Singh Januja and Ors. vs. State of Punjab & Ors. have made the following observations :- (A) Constitution of India, Art.16- Reservation-Quota for Scheduled Caste and Backward Class fixed- Roster system applied-Further stipulation that roster is to be implemented in the form of a running account from year to year- Roster does not survive once prescribed percentage of reserved posts are filled. (B) Constitution of India, Arts. 16(4), 335-Promotion-General category post in higher grade-Scheduled Caste or Backward Class candidate appointed/promoted to lower grade post on basis of reservation and system of roster-Cannot claim promotion to higher grade general post on basis of seniority in lower grade achieved because of accelerated promotion/appointment by applying roster. The aforesaid directions of the Apex Court do not allow filling of unreserved slots by the reserve candidates who have availed the benefit of reservation and roaster at any initial stage. Therefore, these promotion orders dated 10.12.02 and 01.02.03 need proper and careful scrutiny. Proper avenues be created to ensure that the applicant and likewise similarly situated eligible candidates (Superintendents) find right place in the existing scheme of things. The respondents plea does not find much legal force as the imbalance in promotion quota is reflect owing to violation of prescribed norms. The respondents contention cannot be accepted in toto that there are only 10 vacancies in department in the grade of Assistant Commissioners, the prescribed norms of department and Government of India would be suitably followed. Thus, promotion of applicant and similarly situated persons/officers (Superintendents Customs / Central Excise) be ensured by the respondent department to the post of Assistant Commissioner of Central Excise from the cut off date as per their seniority and eligibility.
9. To reiterate, there is need to rationalize the whole promotion channel; this job could better be done by the respondents by way of analyzing the existing vacancies, thereby ensuring promotion of the general candidates on the vacant posts of Assistant Commissioners. As the general category candidates have been ignored promotion, this brings feeling of discontentment amongst them. Therefore, vacant positions for the promotion posts be worked out as on the cut off date & over all vacancies for the posts of Assistant Commissioners should be calculated; and vacancies be filled up in phased manner by adopting the circulars/instructions of DOPT (Govt. of India) and following the roster system properly. It is clarified that as on date 27 officers of SC category and 07 officers of ST category were promoted in excess in respect of Supdt. of Central Excise. These and any other excess promotions can be regularized by working out the total existent vacancies, rationalizing the said set up and working out the vacant positions, thereby channelising the whole setup/system. The respondents are directed to work out details and rationalize the promotions of general category eligible candidates on vacant posts of Assistant Commissioners while following the roster/reservation quota as per prescribed norms and Government of India directions.
10. In the light of observations made above, no interference is called for in the matter at our level. Resultantly, the present O.a. falls and the same is hereby dismissed. No order as to costs.
2. In view of the aforesaid submission of the applicants counsel, we have directed the respondents counsel to take instructions from the respondents to let us know what further action has been taken by them on the aforesaid order of the Jodhpur Bench. Today, when the matter was taken up for consideration, learned counsel for the respondents has submitted that the respondents have accepted the aforesaid order of the Jodhpur bench. However, learned counsel for the applicants has submitted that the respondents have only considered the last part of the said order wherein the Tribunal has dismissed the OA but the observation made in para 9 of the same has not been considered by them.
3. In view of the above position, we dispose of this OA in the same line as in the aforesaid order passed by the Jodhpur Bench. However, we direct the respondents to take appropriate action and pass orders in a time bound manner but in any case within a period of two months from the date of receipt of a copy of this order under intimation to the applicants.
4. There shall be no order as to costs. (Shekhar Agarwal) (G George Paracken) Member (A) Member (J) /vb/