Promotions to the post of Assistant Commissioner must adhere to a vacancy-based roster, not post-based, as per Supreme Court precedent.

ORDER

By Hon’ble Mr. B. Anand, Member (A)

The present OA has been filed by the applicants, 5 in number, all Customs Appraisers, who are aggrieved by the action of the respondents in deciding to fill up the post of ‘Assistant Commissioners’ on the principle of ‘post based reservation’ instead of ‘vacancy based reservation’.

2. The background to this controversy is that in the year 2013, the respondents, with a view to alleviate the stagnation being experienced by the three feeder categories of ‘Superintendent of Central Excise, Superintendent of Customs (Preventive) and Customs Appraisers, decided to create 2118 posts of ‘Assistant Commissioners’, which are to be filled up 100% by promotion instead of 50% by promotion and 50% by direct recruitment as envisaged by the Recruitment Rules, as these 2118 posts were originally created in the year 2013 on temporary basis for five years upto year 2018 and thereafter the duration of the posts were extended further upto 31.12.2025. The apportionment of the posts of ‘Assistant Commissioners’ among the three feeder categories as mentioned above has a long chequred history dating back to the year 1989, interspersed with litigation in various judicial fora. The department in the year, 1989 had come out with a scheme ensuring equitable distribution of promotional opportunities among the above three categories and the same was allowed by the Hon’ble Supreme Court.

3. Initially, the quota for the three feeder categories were fixed as 6:1:2, i.e., in a cycle of nine vacancies, which have to be filled up, first six will be given to Superintendent of Central Excise, one will be given to Superintendent of Customs (Preventive) and two will be given to Customs Appraisers.

4. Evidently, even at that time, a controversy arose that after these posts have been initially filled up, whenever vacancies arise off and on, what should be the method to be followed by the department in filling up those vacancies. Should it be ‘post based’ or should it be ‘vacancy based’.

5. The matter went upto the Hon’ble Supreme Court, which finally ruled in the matter of All India Federation of Central Excise v. Union of India & Ors., 1999 3 SCC 384 that apportionment of promotional post should be ‘vacancy based’ and not ‘post based’.

6. Now, for filling up the 2118 temporary posts of ‘Assistant Commissioners’, initially a DPC was convened on 21-22.12.2020 and based on the assessment of the DPC, 968 officers were promoted and thereafter the latest DPC was conducted on 11.01.2023 and based on that DPC, which is the impugned order dated 15.07.2023 was issued promoting 682 officers. As mentioned above, the applicants herein, who are 5 Customs Appraisers aggrieved by the impugned order dated 15.07.2023, made a representation dated 21.08.2023 stating that the judiciary have consistently held that the apportionment of the promotional posts of ‘Assistant Commissioners’ among three feeder categories of Superintendent of Central Excise, Superintendent of Customs (Preventive) and Custom Appraisers should be ‘vacancy based and not post based’. The respondents are yet to dispose of the representation dated 21.08.2023 and subsequent reminders given by the applicants, forcing them to approach this Tribunal by way of filing an Original Application No. 2977/2023 seeking a ruling from the Tribunal as to whether the promotional post of ‘Assistant Commissioner’ should be filled up by the respondents on the principle of ‘post based’ or ‘vacancy based’. The Tribunal vide its order dated 19.12.2023 did not give a clear-cut ruling on this aspect of ‘post based’ vs. ‘vacancy based’, and on the ground that the representation dated 21.08.2023 of the applicants is still pending adju