REPRESENTATION MADE BY CUSTOMS PREV FOR IMPLEMENTATION OF SC ORDER/JUDGEMENT OF APEX COURT ON RATIO !

From :- S P DUDEJA
Supdt. Of Customs ( Prev. )
Legal ( Export),
New Custom House,
Ballard Estate.
Mumbai-400001 

Dt. 22-07-2013
To
The Chairman
Central Board of Excise and Customs,
Department of Revenue, Ministry of Finance,
North Block, New Delhi-110001.
Sir,
Subject:- (I) Implementation of the Hon’ble Supreme Courts judgment dt.03-08-2011 & 11-07-2013 (II)Regularization of all Ad hoc promotions & (III) Impact on scrapping of Direct Recruit Appraisers for promotion from Group B to Group A posts – reg.
I would like to state that the Hon’ble Supreme Court of India had made a note of the submissions of the U.O.I. in their affidavit in reply and passed certain directions. All the four directions therein were to be considered in the light of the stated background affidavit in Civil Appeal No. 1198 of 2005 filed by the U.O.I , inter alia, stating, that it has initiated the process of reviewing the Recruitment Rules, 1987 for promotion from Group 'B' posts to Group 'A' posts. The entire scheme is being re-looked and worked out at the departmental level in consultation with an expert body including the Department of Personnel and the entire process is likely to be completed by 31st December. It was expected that the U.O.I. would consider the representations on merits ( by way of a substantive and speaking order on the issues raised in the representations ).But, in the meeting dt 16-09-2011 decisions were taken contrary to the submissions made in the Hon’ble Supreme Court of India by not involving an expert body like DOPT & though also not involved Law Ministry as both of them would have guided ( on the various OM’s on the issue by the DOPT and legality of the date of implementation of the issue in dispute by the Law Ministry ) the Board in arriving at logical decisions without complicating the matter further & compelling the litigants to take further legel remedies.
The Hon’ble Superme Court of India has now further passed an order:-
If any representation is made, we expect the respondents to look into it expeditiously, preferably within 8 weeks from the receipt thereof. The decision will be taken after considering the merits of the submissions of the petitioners.
Please find enclosed my earlier letter dt. 01-10-2011 on the above subject. I reiterate all the submissions made therein except second part of para (II) which is in respect of information obtained under RTI. I make further submissions for consideration :-
( I V ) (a) Para 3.1 in Part II on GUIDELINES ON DEPARMENTAL PROMOTION COMMITEES inter alise states :- --------------------------------------. A vacancy shall be filled in accordance with the recruitment Rules in force on the date of the vacancy, unless rules made subsequently have been expressly given retrospective effect. --------------------------------------------------------------------
(b) All the promotions from 1997 onwards are on Ad hoc basis. Ad hoc Promotions made in whatever ratio or basis are not made under any Rule whatsoever. As the 1987 Customs and Central Excise Recruitment Rules have been superseded ( not amended or revised ) by the new Recruitment Rules of 2012, no Regulization DPC can be conducted under the 1987 now defunct rules.
(c) The Constitional Bench of the Hon’ble Supreme Court of India in the case of R K SABHARWAL Vs State of Punjab as well as J C MALLICK Vs Ministry of Railways have held that the reservation of jobs for the backward classes SC/ ST/ OBC should apply to posts & noy vacancies DOPT has issued O.M. No. 36012/2/1996 – Estt. ( Res ) dated 02/07/1997 & further instructions vide O.M. 36011/2/2011 – Estt ( Res ) dt. 17th Nov. 2011 clarifying that Govt. had introduced post base reservation as also mentioned in O.M. 02/07/1997 in Para 5.3 (a) Chapter 5 on RESERVATION REGISTERS AND ROSTER REGISTERS ----------- Separate registers/roster registers shall be maintained for appointments made by direct recruitment and promotion. As per this O.M. , thus , it appears that in the R R’s dt. 13th September 2012 provided in para 5 , the words ‘vacancies’ is contrary to the O. M. 36012/2/19960 dt. 02/07/1997 & instead it should be ‘Posts’ not only in the said Rules but also from 02/07/1997 onwards.
I hope that as per Hon’ble Supreme Court’s direction now a substantive & speaking order is passed in compliance of the said order of the Hon’ble Supreme Court of India

Thanking You,
Yours Faithfully

( S P DUDEJA )
Supdt. Of Customs ( Prev. )
Copy to:-
(1) The Member ( P&V), Central Board of Excise and Customs, Department of Revenue, Ministry of Finance, North Block, New Delhi-110001.
(2) The Jt. Secy, ( Admn. ) Board of Excise and Customs, Department of Revenue, Ministry of Finance, Block, New Delhi-110001.
(3) The Additional Director General, General of Human Resources Development, Resources Management Wing, Customs and Central Excise, 507/8, Deep Shikha Building, Rajendra Palace, New Delhi – 110 008.