2012 PLP (C (PLC(CS))

FARRAKH QAYYUM (MEMBER).

Through this common judgment, we shall decide the captioned five appeals, as identical questions of law and facts are involved therein.

2. The appellants are aggrieved by the impugned order dated 9-9-2010, issued by Model Customs Collectorate, (MCC) Sambrial (Sialkot), whereby their departmental appeals for promotion against the vacant posts of Inspectors, against promotion quota, were rejected. Hence, the present appeals were filed before the Tribunal on 6-10-2010. The appellants have also filed an application for interim relief.

3. The facts of the case, briefly, are that ' the Government established Model Customs Collectorate (MCC) at Sambrial by way of bifurcation of the Collcctorate of Customs, Sales Tax and Central Excise, Gujranwala; MCC was assigned function and work relating to Customs while the Gujranwala Collectorate retained the functions of A Sales Tax and Central Excise. Thirty Seven (37) posts of Inspectors; among others posts, were sanctioned for MCC. These posts of Inspectors were to be filled in the ratio of 50% by direct appointment and 50% by promotion of the eligible staff of MCC. The cause of grievance of the appellants is that the posts of inspectors have not been filled up in accordance with 50% ratio. In their view, transferees have been adjusted against promotion quota posts whereas their adjustment should have been against direct quota posts.

4. The reason given by the Collector, in' the impugned order, for rejecting their departmental appeals is that some inspectors were posted is MCC by way of transfer from other Collectorates. These inspectors A had. been promoted as Inspectors against promotion quota posts in those Collectorates. Therefore, they were adjusted against promotion quota posts in MCC. The impugned order has been issued in pursuance of the orders of Federal Service Tribunal dated 12-1-2010 in Appeals Nos.984 and 985(R)CS of 2009 and honourable Lahore High Court, Rawalpindi Bench dated 25-8-2010 in Writ Petition No.3711 of 2010.

5. The learned counsel for the appellants argued that the appellants had qualified departmental examination for promotion as Inspector. Being amongst the senior most staff, they have a legitimate expectation of, promotion since posts were available for promotion. He pointed out that the respondents have been continuously denying the right of promotion to the appellants by misinterpreting the rules notified by Central Board of Revenue vide S.R.O. 57(1)/77 dated 5th January, 1977. He informed that para 2 of the said SRO titled "Method of Appointment", had been laid down that promotion quota posts can only be filed up by transfer only if suitable staff was not available for promotion. He further pointed out that. para 2 also contained a proviso that if exigencies of public service require direct quota posts could also be filled by way of transfer.

6. The learned counsel for appellants continuing his arguments stated that the respondents had not adhered to this provision, in the case of Inspectors transferred to MCC to other Collectorate. He highlighted that the transferred officers had been accommodated against promotion quota posts on the plea that these inspectors were working against promotion quota posts in the Collectorates from where they had been transferred. He argued that once a government servant had been regularly appointed whether by way of promotion or direct recruitment, the manner of appointment should have no bearing on his further promotion, transfer or otherwise. He said that under this rationale, the Custom Inspectors transferred from other Collectorates were holding substantive post of Inspectors in these Collectorates and on their transfer they should be adjusted against direct quota posts as laid down in the rules rather than promotion quota posts. The promotion quota posts in MCC had to be filled by way of promotion Collectorate from the eligible staff of MCC. He argued that the respondents be directed to recalculate the posts of Inspectors in MCC on this principle and 'promote the appellants from the date these posts had fallen vacant.

7. The learned counsel for respondents on the other hand contended that promotion quota posts are not available. Therefore, the appellants cannot be promoted. He added that the speaking order dated 9-9-2010 explains the position of posts which has not been challenged by appellants thus they accepted the department's view. 8.. The learned counsel for respondents further contended that the transferred Inspectors had been adjusted against the promotion quota posts of Inspectors because' they had been promoted against the promotion quota posts in their previous Collectorates which is legal and in accordance with the spirit of rules.

9. The learned counsel for respondents also contended that the respondents had not miscalculated the promotion quota. The current vacancies are for direct quota and not for promotion quota thus the appellants have not been deprived of their lawful rights.

10. We have heard the learned counsel for the parties and have also perused the record.

11. There is no denying of the following facts by the litigating parties that;

(i) there were 37 posts of Inspectors in MCC at the time of the filing of the appeals which were to be filled up in the ratio of 50% each by direct recruitment and promotion respectively ; (ii) certain posts falling in the promotion quota have been filled up by way of transfer of Inspectors from other Collectorates who had been promoted against promotion quota posts of those Colleetorates. The point or issue to be determined is whether the transferred inspectors can be adjusted against promotion quota posts. To 'resolve this issue, we B have reviewed para 2 of CBR's S.R.O. 57(I)/77 dated 5-1-1977, notifying the method of appointment of Inspectors in Central Excise and Customs Departments. This para is reproduced below:-- "50% of the posts in the Central Excise ... and Customs Department shall be filled by promotion of Ministerial staff (25% by the Graduates only and 25% by Graduates as well as by non-graduates), and the remaining 50% shall be filled by direct recruitment provided that if a suitable person is not available for promotion within the Department concerned the vacancy shall be filled by transfer: Provided further that in exceptional circumstances, ... the exigencies of public service so require, vacancy meant for direct recruitment maybe filled by transfer"

12. MCC is an independent Collectorate/establishment. It can neither be burdened with nor made. to carry the liability of appointment of against direct or promotion quota posts of other Collectorates or their appointees. The above rule has to be followed independently while filling up or making appointments of Inspectors in MCC. As such, the posts of inspectors in MCC cannot be adjusted or filled up on the basis of the manner of appointment of the transferees of other Collectorates. In view of this principle, we do not agree with the argument of the respondents that since the transferred inspectors had been promoted in their erstwhile Collcctoratcs by way of promotion, they, therefore, had to be adjusted against promotion quota posts of MCC. Inspectors once promoted cannot F be tagged as "promoted inspectors" while considering their future postings or promotions as done in the instant case. Once a civil servant is appointed on regular basis against a post whether by promotion or any other manner prescribed under the relevant rules he/she becomes a member of that cadre for all practical purposes.

13. Promotion quota post in MCC will be calculated accordingly, and will be filled up from amongst qualified staff, by the relevant authority, under prescribed rules/procedure. If any promotion quota post remains vacant, that may be, temporarily, filled up by way of transfer, as provided in the said'rules. This process shall be completed by the department preferably within 03 months from the date of receipt of this Judgment.

14. No order as to cost.

15. Parties be informed. H.B.T./23/FST???????????????????????????????????????????????????????????????????????? Order accordingly.