1998 PLP (C (PLC(CS))

SAIDUZZAMAN SIDDIQUI, J.

The petitioner is seeking leave to appeal against the judgment of Federal Service Tribunal dated 24-7-1995 whereby service appeal filed by the petitioner was dismissed ' The relevant facts of the case are that the petitioner was appointed as L.D.C. (B-5) on 9-4-1977 in the Directorate-General Intelligence and Investigation Customs and Excise). The petitioner was promoted step -by step and was finally promoted as Office Superintendent (B-13) on 5-8-1985. He was considered for promotion as Deputy Superintendent (B-14) by the Departmental Promotion Committee (D.P.C.) in its meeting held on 19/20-5-1990 alongwith other persons working in the Office of Directorate General. Four Office Superintendents whose names were above the petitioner in the recommendations of the D.P.C. were promoted as Deputy Superintendent (B-l4) but petitioner's case could not be finalised. At this stage it may be mentioned here that under the Notification dated 26-6-1974 the post of Deputy Superintendent of Central Excise and Land Customs was to be filled 100 per cent by promotion from amongst the Inspectors of Central Excise and Land Customs having at least five years continuous service in the grade of inspectors. This notification was amended on 15-3-1979 vide S.R.O.249(I)/79 which provided that henceforth only 95 percent of the total vacancies of Deputy Superintendents of Central Excise and Land Customs will be filled in by promotion of Inspectors of Central Excise and Land Customs while 5 per cent of the vacancies of Deputy Superintendents, Central Excise and Land Customs were reserved for promotes from amongst Stenographers, Steno-typists, Office Superintendents and Head Clerks. However, the condition of eligibility provided that from amongst this category of candidates eligible seniors were to be first promoted. It is contended by the learned counsel for the petitioner that the petitioner had preferential right for promotion to the post of Deputy Superintendent, Central Excise and Land Customs in this category as the post of Office Superintendent was in B-13 while rest of the persons eligible under this category were serving in lower grades. However, while the petitioner's case for promotion was under consideration in accordance with the terms of S.R.O. No.249(I)/79, dated 15-3-1979, the Central Board of Revenue (C.B.R.) sent a telex which provided that the cases of Steno typists who were enjoying Selection Grade in B-14 may be reconsidered in the D.P.C. in the basis of their seniority i.e dates of their appointments and if the Steno typists are senior according to date of joining, the office superintendent who are in B-13 shall be treated as junior. This was followed by another telex from the C.B.R, which provided that Statistical Assistants/Assistants may also be considered in the category of persons eligible for promotion under 5 per cent. quota, and therefore, the cases of Statistical Assistants and Assistants may also be considered by the D.P.C. alongwith other ministerial staff. The C.B.R. further issued guideline for utilization of 5 per cent. quota reserved for the promotion of Deputy Superintendent by letter dated 2-11-1992 as follows" "(a) Office Superintendents (B-13) (b) Stenotypists (B-12) and Steno typists, selection Grade (B-14) (c) Statistical Assistants (B-11) (d) Assistants (B-11) This guideline was further revised by the C.B.R. through letter-dated 9-2-1993, which laid down the categories of persons who were eligible for promotion under 5 per cent quota, as follows (a) Office Superintendents (B-13) (b) Steno typists (B-12) (c) Steno typists (Selection Grade) (B-13) (d) Statistical Assistants/Assistants. (B-11) This was followed by another letter from C.B.R. dated 19-7-1993 ill which it was stated that out of total strength of 597 Deputy Superintendents, 30 seats of 5 per cent. quota be filled in the following manner:-- Stenotypists 16 Office Superintendents 12 Assistants/Statistical Assistants 2 As a result of these instructions issued by the C.B.R. several persons who were working as Stenographers, Statistical Assistants and Assistants and were junior to the petitioner were promoted. The petitioner, accordingly, challenged promotion of persons who were working as Stenographers, Statistical Assistants/Assistants before the Service Tribunal. Some other persons who were also serving as Office Superintendents challenged promotion of Statistical Assistants and stenotypists. These appeals were heard by the Tribunal on 16-10-1994 and on the basis of statement of Second Secretary, C.B.R. that the cases of all the persons are being processed and will be disposed of within a fortnight, the appeals were disposed of by the Tribunal leaving it open to the petitioner and others that if they were dissatisfied with the order of departmental authority to approach th8 Tribunal again. The petitioner was, accordingly, promoted on 29-12-1994 as Deputy Superintendent. The petitioner, however', claimed that he was entitled to promotion in 1990 in accordance with the recommendations of D.P.C., and therefore, he should be given promotion from the back date. As the petitioner was unable to get any redress he filed a departmental appeal in which he claimed his promotion from 1991 in accordance with S.R.0.249(i)/79, dated 15-3-1979 and challenged the validity of subsequent instructions and letters issued by the C.B.R. making eligible persons who were not mentioned in S.R.O. 249(1)/79, eligible for promotion as Deputy Superintendent. As the departmental appeal was not disposed of within 90 days, the petitioner approached the Service Tribunal, which dismissed the appeal of the petitioner. Mr. Shah Abdur Rashid, the learned counsel for the petitioner in seeking leave to appeal contended that the petitioner having become eligible for promotion in accordance with S.R.O. No.249 (I)/79, dated 15-3-1979 he was entitled to be given anti-dated promotion from the date he was recommended and became eligible for the appointment as Deputy Superintendent. It is further contended by the learned counsel that the promotion of various other persons in pursuance of subsequent instructions issued by the C.B.R. was wholly without jurisdiction as no S.R.O. was issued on the basis of instructions issued by the C.B.R. which could amend S.R.O. 240(1)/97, dated 15-3-1979. The contention raised by the learned counsel for the petitioner raises legal question of general importance and we, accordingly grant leave to appeal. A . A. /A-41 /S Leave granted