Decided on March 27,1997

Azizul Haque Sikder Appellant
Collector Of Customs, Chittagong Respondents


LATIFUR RAHMAN,J - (1.) This appeal by the twelve appellants who are Appraisers, Custom House, Chittagong is from the judgment and order dated 29-9-93 passed by the Administrative Appeal Tribunal in Appeal No. 74 of 1991 dismissing the appeal and upholding the judgment and order dated 12-9-91 passed by the Administrative Tribunal, Dhaka in AT Case No. 77 of 1990.
(2.) The present appellants in the said AT Case asked for a declaration that the gradation list of the Appraisers published by the Collector of Customs Chittagong on 26-11-88 was illegal and unlawful. They claimed that as per memo of the Board of Revenue dated 21-6-77 and as per the Principal Appraisers and Appraisers (Customs Department) Recruitment Rules, 1980 introduced by SRO dated 18-12-80 which was subsequently amen by an SRO dated 3-1-83 certain percentage of Appraisers are to be recruited by direct recruitment and certain percentage by promotion from amongst the Preventive Officers at all times, the proportion varying at various stages. The petitioners were all Preventive Officers who joined their posts on various dates in 1965. Only appellant No. 2 was transferred as a Preventive Officer and appellant Nos. 10, 11 & 12 were promoted as Preventive Officers. They contended that from 1977 to 1986 there was direct recruitment of 35 officers but the vacant posts of Appraisers were not filled up by promotion. The appellants were promoted as Appraisers in 1986. It is their case that they would be deemed to have been promoted to the posts of Appraisers in the years in which the promotion quota was to be filled up because there is provision for both direct recruitment and recruitment by Promotion. The established principle is that the quota of promotion is to be filled up first and then the case of direct recruitment is to be taken up. Further, by memo dated 26-6-83 the two posts of preventive officers and appraisers were placed in the same pay scale of Taka 470-1135.00. The appellants contended that by having the same scale of pay the preventive officers and appraisers have become members of the same class with effect from 26-6-83. They therefore contend that they have become senior as a class above those who have be appointed directly as Appraisers after 26-6-83. 30 of the Appraisers are entitled to be senior to those who have been recruited directly in 1983 and 4 of the appraisers would be senior to those who have been appointed directly in 1978, as they were not promoted to the posts of appraisers in these years due to departmental procedural lapse and, as such, their seniority is to be restored. They filed an appeal before the National Board of Revenue against the Gradation list showing them as juniors to the direct recruits and the appeal having been rejected they filed the AT Case.
(3.) The respondents contended that the scope for promotion created by the order dated 21-6-77 was operative for only 6 months and it lapsed on 20-12-77. Still 31 preventive officers and Inspectors of Customs and Excise were promoted against 43 vacant posts of Appraisers in 1978. In 1983, 21 officers were directly recruited of whom 6 were technical Appraisers for whom there was no feeder post which remained vacant since 1979. Of the remaining 10 officers, 3 officers were appointed in 1984 and 4 officers were appointed compulsorily in 1985 at the instance of Establishment Division from surplus personnel of Youth Development Ministry and Mujibnagar employees/freedom fighters. The promotion of appellants was delayed because they refused to sit for the departmental examination. The posts of Preventive Officers and Appraisers are separate posts and the two have never been amalgamated. The appellants who were Preventive Officers did not become Appraisers automatically simply because of amalgamation of pay scale. They acquired the capability of promotion after they appeared at an interview in 1986. They cannot claim retrospective promotion along with retrospective seniority.;

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