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TMI Blog2013 (7) TMI 503X X X X Extracts X X X X X X X X Extracts X X X X ..... 012 with a consequent relief of quashing the appointment of respondent No.5 as member. 2. Writ petition No.4140/2013 has been filed by the Union of India challenging the order of the Tribunal whereby the Tribunal has granted the relief to Mr.P.S.Pruthi by holding that since Mr.P.S.Pruthi has rendered more than one year of regular service in the prescribed post as on December 31, 2012, that is the date of occurrence of the fourth vacancy in the Financial Year 2012-13, the Selection Committee ought to have considered him for appointment as Member CBEC in its initial meeting itself and could not exclude him from the eligibility list. 3. For convenience/clarity we shall be referring Mr.P.S.Pruthi petitioner in Writ Petition No.2859/2013 as „the petitioner' and Union of India, the petitioner in WP(C) No.4140/2013 as „the respondent'. We may state here that there are common respondents in both the Writ Petitions and are arrayed as R-3, R-4 and R-5. They are addressed as such in this judgment. 4. The petitioner is a 1978 batch officer of Indian Revenue Service and is presently serving as Chief Commissioner of Customs and Central Excise, Chandigarh. As per the Recruitment Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be passed over without any further procedure. 6. An amendment to the abovementioned guidelines dated June 08, 2006 with regard to the date with respect to which the requirement of one year service as Chief Commissioner, was to be reckoned, was introduced by way of confidential note dated July 13, 2006 of the Cabinet Secretary. The said amendment was inter-alia to the extent that a Chief Commissioner is required to have one year of service as on 1st of April of the year for which the panel is prepared. 7. The Recruitment Rules of 2006 were amended by way of Central Board of Excise and Customs (Chairman and Members) Recruitment (Amendment) Rules 2008 on December 24, 2008 and thereafter by the Central Board of Excise and Customs (Chairman & Members) Recruitment (Amendment) Rules 2012. The amendment in so far as the present case is concerned is to the following effect: Amendment of 2008 Officers of the Central Government appointed on a regular basis in the grade of pay Band-4 Rs.37400-67000 with Grade Pay of Rs.12000/- per month. AND possessing the following essential qualification:- (i) Having at least 15 years of experience in administering and running the indirect tax admin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound that he was not having, on April 01, 2012, the length of at least one year service as Chief Commissioner as the petitioner was appointed as Chief Commissioner on September 09, 2011. Accordingly the respondent Nos. 3 to 5 were appointed as Members, CBEC on August 02, 2012, August 09, 2012 and September 03, 2012 respectively. 10. It may be clarified here that the 4 vacancies for which the panel was to be prepared, were to arise on May 01, 2012, August 01, 2012, December 31, 2012 and January 31, 2013. It so happened that one Smt.Sreela Ghosh, Member, CBEC who was to superannuate on January 31, 2013 pursuant to which the 4 vacancies were to arise, took voluntary retirement on September 04, 2012. Against this vacancy the 5th respondent was appointed. This aspect was clarified by the learned counsel for the petitioner before us at the time of the arguments. 11. On November 16, 2012 a further circular was issued by the respondent for one post of Member, CBEC which is to fall vacant on December 31, 2012. The circular which was communicated to the petitioner, stipulates that in terms of the Recruitment Rules of 2006 as amended on May 30, 2012 the post is to be filled on deputation/ a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t incorporated the stipulation of the guidelines in the Recruitment Rules now cannot invoke such a stipulation to oust the consideration of the petitioner. During the submissions before us, Mr.C. Harishankar, learned counsel appearing for the petitioner would submit that vacancies were to arise on May 01, 2012, August 01, 2012, December 31, 2012 and January 31, 2013. According to him one officer was to demit office only on January 31, 2013, it so happened that the said officer took premature retirement on September 04, 2012. According to Mr.Harishankar the committee of Secretaries which met in the month of July, 2012 could not have foreseen such an eventuality. He would further submit that on the officer taking premature retirement on September 04, 2012, the post became vacant and the respondent No.5 was accommodated against the same. He has filed a summary of his submission wherein reliance is placed on the judgment of the Supreme Court reported as 1997 (10) SCC 419, State of Rajasthan v. R. Dayal. 16. Mr.Rajeeve Mehra, learned Addl. Solicitor General would rely upon the guidelines issued on July 13, 2006 to support the action of the respondent. The counsel for the respondent has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications and that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority. 16. The same view was reiterated in M.A. Murthy v. State of Karnataka (2003) 7 SCC 517 and Ashok Kumar Sonkar v. Union of India (2007) 4 SCC 54. Therefore, the Full Bench of the High Court rightly held that a candidate who does not possess driving licence on the last date fixed for submission of the application is not eligible to be considered for selection". 20. In the case in hand the facts are a little peculiar. As noted above neither the Recruitment Rules nor the circular dated October 21, 2011 prescribe an officer to have one year of service in the post of Chief Commissioner as on April 01, 2012. The circular dated October 21, 2011 only prescribes November 30, 2011 as the date by which the applications have to be sent to the department. If the law as propounded by the Supreme Court and as referred above is applied then an officer should meet the eligibilit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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