IN THE HONOURABLE CENTRAL
ADMINISTRATIVE
TRIBUNAL,
CUTTACK BENCH, CUTTACK.
CUTTACK BENCH, CUTTACK.
OA NO. 624/2011
All India Association of Central Excise Gazetted Executive Officers, Bhubaneswar and others....... ----- Applicants.
Vs. Union of India and Others. -- --.Respondents.
1. The Applicants have filed the above mentioned Original Application with a prayer to(a) quash the office order F.No. A-26017/73/2006-Ad.IIA dated 06.10.2010 issued by Respondent (2) duly declaring the same as illegal in the eye of law (b) The Hon’ble Tribunal be pleased to direct the Respondents to grant the pay scale ofRs.8000-13,500/- to the cadre of Superintendent, Central Excise and Customs w.e.f. 01.01.1996
and pay scale of Rs.10,000-325-15,200to those Superintendent who have been awarded 2nd financial up-gradation under ACP scheme w.e.f. 09.08.1999 and consequently the corresponding pay scale be allowed after 6th Central Pay Commission recommendations (c) apart from the above scale consequent to 6th Central Pay Commission the Superintendent of Central Excise and Customs may be given grade pay
of Rs. 5,400/- inPB-3 w.e.f.01.01.2006 and grade pay of Rs.6600/- in PB-3 w.e.f. 01.01.2006 to those Supdt. Of Central Excise who have completed 4years of service in the grade and grade pay of Rs.7600/- in PB-3 w.e.f.01.01.2006 to those Superintendent of Central Excise who have awarded with 2ndfinancial up-gradation in ACP scheme (d) It may be declared that the disparity in the pay scale is required to be removed from the date when such disparity arose and direction be given to the respondents to effect
the appropriate higher scale of pay to the Superintendent of Central Excise and Customs retrospectively i.e from01.01.1996/ 01.01.1986 (e) the Hon’ble Tribunal may be pleased to direct the Respondents to grant all the consequential reliefs with arrear of pay and interest. (f) Appropriate direction be given
to pay the differential arrear within the time stipulated by the Hon’ble Tribunal (g) And any other
appropriate order be also passed and direction be made which deems just and proper and (h) and Original Application be allowed with cost.
2. It is respectfully submitted that the High Powered Committee in their report (Annexure-A/7) vide para-6 had stated the following :
“6. By placing the Group-B services in CBEC/CBDT in the pay scale of Rs.7500-12000,
they would be placed on par with identically situated Group-B employees in organisations in the Department of Revenue, such as the Directorate of Enforcement and NCB, as detailed in Annexure-B. The Committee also wished to draw attention to the fact that the duties and responsibilities of similar levels in these two organizations are on par with the duties and responsibilities of Group-B and C in the CBEC/CBDT.”
3. It is respectfully submitted that the post of Chief Enforcement Officer in Enforcement Directorate is appeared vide Serial No.3 of Annexure-B (comparable Group-B Services).
It is respectfully submitted that the pay scale of the post of Chief Enforcement Officer was upgraded to the pay scale of 8000-13500 vide Order F.No.1612612004-Ad.I.C dated 4.10.2005 (Annexure-R/5) by the Govt. without up grading the pay scale of Superintendent of Central Excise arbitrarily.
After such up-gradation the post of Chief Enforcement Officer was allowed the
replacement Gr. Pay of 5400 in PB-2 w.e.f. 01.01.2006 on implementation of recommendation of 6th Central Pay Commission by Govt. of India.
4.It is respectfully submitted that the 6th Central Pay Commission
vide para 7.15.24 of their recommendations had stated the following :
“ 7.15.24 – The posts of Assistant Enforcement Officer and Chief Enforcement Officer have traditionally been on par with the posts of Inspectors and ITO/analogous posts in CBDT and CBEC. Subsequent to up-gradation of posts of Inspectors/ITOs/analogous posts in CBDT and CBEC, the Government also upgraded the posts in Enforcement Directorate but with a time lag. Since the parity between these posts is well established, the Commission recommends that the same should be maintained in future.”
The copy of para 7.15.24 is annexed as Annexure – R/8.
5. It is respectfully submitted that in view of the recommendations of 6th Central Pay Commission and High Power Committee as narrated above it is required to award the pay scale of 7500-12000 & 8000-13500 to the grade of Superintendent of Central Excise w.e.f. 01.01.1996 and 4.10.2005 respectively. Those Superintendents of Central Excise were granted 2nd Financial up gradation under ACP were required to be granted the pay scale of 10000-15200 w.e.f 04.10.2005 ( The scale of pay 10000-15200 is immediate higher pay scale of pay scale 8000-13500).
The DOPT’s OM No.35035/1/97-EST(D) dated 8.9.1999 (page 902 of Swamy’s Manual on Establishment and Administration-2000 edition) vide para-7, Annexure-I thereof, interalia provides that financial up-gradation under the ACP Scheme shall be given to the next higher grade in accordance with the existing hierarchy in the cadre.
The replacement Grade pay for pay scale 8000-13500 is Gr. Pay 5400 in PB-2 (9300-34800) and the replacement Grade of pay for pay scale 10000-15200 is GP 6600
in PB-3 (15600-39100), which are required to be awarded to the grade of Superintendent of Central Excise and Superintendents of Central Excise having 2nd financial up gradation under ACP scheme respectively w.e.f. 01.01.2006.
6. It is respectfully submitted that the Govt. of India, Ministry of Finance
(Department of Expenditure) vide Notification dated 29.08.2008 had created two classes in the grade of Superintendent of Central Excise without considering the recommendations as contemplated vide para-7.15.24 of 6th Central Pay Commission reports and arbitrarily without any justification had awarded the pay scale of 7500-12000 revised to Gr. Pay 4800 in PB-2 (9300-34800) to the Superintendents of Central Excise those have completed less than 4 years of service and the pay scale of 8000-13500 revised to Gr. Pay 5400 in PB-2 (9300-34800) to the Superintendents of Central Excise
those have completed more than 4 years of service w.e.f. 01.01.2006. It is respectfully submitted that since the Govt. of India has created two classes in the grade of Superintendent of Central Excise w.e.f. 01.01.2006, it is required to award the Gr. Pay 5400 in PB-2 (9300-34800) in accordance with the recommendation of 6th Central Pay Commission vide para 7.15.24 to those Superintendents who have not completed 4 years of service at par with Chief Enforcement Officer w.e.f. 01.01.2006.
Those Superintendents completed 4 years of service are required to be awarded with the
Gr. Pay of 5400 in PB-3 (15600-39100) w.e.f. 01.01.2006, the Gr. Pay 5400 in PB-3
is the immediate higher Gr. Pay of Gr. Pay 5400 in PB-2. 7. It is respectfully submitted that in reply to the averments made in para-4 to the parawise comments of the
counter , the respondents have admitted that paragraph 4.1 to 4.3 of the OA are facts on record.
Therefore the Respondents have admitted that the Applicants are entitled for the pay scale of 8000-13500 w.e.f 01.01.96 and pay scale of 10000-15200 was required to be granted to 2nd ACP holders w.e.f 09.08.199.
All India Association of Central Excise Gazetted Executive Officers, Bhubaneswar and others....... ----- Applicants.
Vs. Union of India and Others. -- --.Respondents.
1. The Applicants have filed the above mentioned Original Application with a prayer to(a) quash the office order F.No. A-26017/73/2006-Ad.IIA dated 06.10.2010 issued by Respondent (2) duly declaring the same as illegal in the eye of law (b) The Hon’ble Tribunal be pleased to direct the Respondents to grant the pay scale ofRs.8000-13,500/- to the cadre of Superintendent, Central Excise and Customs w.e.f. 01.01.1996
and pay scale of Rs.10,000-325-15,200to those Superintendent who have been awarded 2nd financial up-gradation under ACP scheme w.e.f. 09.08.1999 and consequently the corresponding pay scale be allowed after 6th Central Pay Commission recommendations (c) apart from the above scale consequent to 6th Central Pay Commission the Superintendent of Central Excise and Customs may be given grade pay
of Rs. 5,400/- inPB-3 w.e.f.01.01.2006 and grade pay of Rs.6600/- in PB-3 w.e.f. 01.01.2006 to those Supdt. Of Central Excise who have completed 4years of service in the grade and grade pay of Rs.7600/- in PB-3 w.e.f.01.01.2006 to those Superintendent of Central Excise who have awarded with 2ndfinancial up-gradation in ACP scheme (d) It may be declared that the disparity in the pay scale is required to be removed from the date when such disparity arose and direction be given to the respondents to effect
the appropriate higher scale of pay to the Superintendent of Central Excise and Customs retrospectively i.e from01.01.1996/ 01.01.1986 (e) the Hon’ble Tribunal may be pleased to direct the Respondents to grant all the consequential reliefs with arrear of pay and interest. (f) Appropriate direction be given
to pay the differential arrear within the time stipulated by the Hon’ble Tribunal (g) And any other
appropriate order be also passed and direction be made which deems just and proper and (h) and Original Application be allowed with cost.
2. It is respectfully submitted that the High Powered Committee in their report (Annexure-A/7) vide para-6 had stated the following :
“6. By placing the Group-B services in CBEC/CBDT in the pay scale of Rs.7500-12000,
they would be placed on par with identically situated Group-B employees in organisations in the Department of Revenue, such as the Directorate of Enforcement and NCB, as detailed in Annexure-B. The Committee also wished to draw attention to the fact that the duties and responsibilities of similar levels in these two organizations are on par with the duties and responsibilities of Group-B and C in the CBEC/CBDT.”
3. It is respectfully submitted that the post of Chief Enforcement Officer in Enforcement Directorate is appeared vide Serial No.3 of Annexure-B (comparable Group-B Services).
It is respectfully submitted that the pay scale of the post of Chief Enforcement Officer was upgraded to the pay scale of 8000-13500 vide Order F.No.1612612004-Ad.I.C dated 4.10.2005 (Annexure-R/5) by the Govt. without up grading the pay scale of Superintendent of Central Excise arbitrarily.
After such up-gradation the post of Chief Enforcement Officer was allowed the
replacement Gr. Pay of 5400 in PB-2 w.e.f. 01.01.2006 on implementation of recommendation of 6th Central Pay Commission by Govt. of India.
4.It is respectfully submitted that the 6th Central Pay Commission
vide para 7.15.24 of their recommendations had stated the following :
“ 7.15.24 – The posts of Assistant Enforcement Officer and Chief Enforcement Officer have traditionally been on par with the posts of Inspectors and ITO/analogous posts in CBDT and CBEC. Subsequent to up-gradation of posts of Inspectors/ITOs/analogous posts in CBDT and CBEC, the Government also upgraded the posts in Enforcement Directorate but with a time lag. Since the parity between these posts is well established, the Commission recommends that the same should be maintained in future.”
The copy of para 7.15.24 is annexed as Annexure – R/8.
5. It is respectfully submitted that in view of the recommendations of 6th Central Pay Commission and High Power Committee as narrated above it is required to award the pay scale of 7500-12000 & 8000-13500 to the grade of Superintendent of Central Excise w.e.f. 01.01.1996 and 4.10.2005 respectively. Those Superintendents of Central Excise were granted 2nd Financial up gradation under ACP were required to be granted the pay scale of 10000-15200 w.e.f 04.10.2005 ( The scale of pay 10000-15200 is immediate higher pay scale of pay scale 8000-13500).
The DOPT’s OM No.35035/1/97-EST(D) dated 8.9.1999 (page 902 of Swamy’s Manual on Establishment and Administration-2000 edition) vide para-7, Annexure-I thereof, interalia provides that financial up-gradation under the ACP Scheme shall be given to the next higher grade in accordance with the existing hierarchy in the cadre.
The replacement Grade pay for pay scale 8000-13500 is Gr. Pay 5400 in PB-2 (9300-34800) and the replacement Grade of pay for pay scale 10000-15200 is GP 6600
in PB-3 (15600-39100), which are required to be awarded to the grade of Superintendent of Central Excise and Superintendents of Central Excise having 2nd financial up gradation under ACP scheme respectively w.e.f. 01.01.2006.
6. It is respectfully submitted that the Govt. of India, Ministry of Finance
(Department of Expenditure) vide Notification dated 29.08.2008 had created two classes in the grade of Superintendent of Central Excise without considering the recommendations as contemplated vide para-7.15.24 of 6th Central Pay Commission reports and arbitrarily without any justification had awarded the pay scale of 7500-12000 revised to Gr. Pay 4800 in PB-2 (9300-34800) to the Superintendents of Central Excise those have completed less than 4 years of service and the pay scale of 8000-13500 revised to Gr. Pay 5400 in PB-2 (9300-34800) to the Superintendents of Central Excise
those have completed more than 4 years of service w.e.f. 01.01.2006. It is respectfully submitted that since the Govt. of India has created two classes in the grade of Superintendent of Central Excise w.e.f. 01.01.2006, it is required to award the Gr. Pay 5400 in PB-2 (9300-34800) in accordance with the recommendation of 6th Central Pay Commission vide para 7.15.24 to those Superintendents who have not completed 4 years of service at par with Chief Enforcement Officer w.e.f. 01.01.2006.
Those Superintendents completed 4 years of service are required to be awarded with the
Gr. Pay of 5400 in PB-3 (15600-39100) w.e.f. 01.01.2006, the Gr. Pay 5400 in PB-3
is the immediate higher Gr. Pay of Gr. Pay 5400 in PB-2. 7. It is respectfully submitted that in reply to the averments made in para-4 to the parawise comments of the
counter , the respondents have admitted that paragraph 4.1 to 4.3 of the OA are facts on record.
Therefore the Respondents have admitted that the Applicants are entitled for the pay scale of 8000-13500 w.e.f 01.01.96 and pay scale of 10000-15200 was required to be granted to 2nd ACP holders w.e.f 09.08.199.
8.It is respectfully submitted that
vide OM No.1148/Dir(A)/2008 dated 8.12.2008, the Ministry of Finance, Department of Expenditure had interalia stated
under RTI Act,2005
that “Based on the recommendations of the committee set up by the Department of Revenue, the pay scales of the Inspectors and Superintendents of Central Excise in the Central Board of Excise & Customs under Department of Revenue were upgraded vide OM No.6/37/98 dated 21.4.2004 with a view to maintain their relativity with corresponding posts in CBI/IB.”(Annexure-R/12.)
9. It is humbly submitted that the Hon’ble CAT, Mumbai Bench vide para 18 to OA No.86/2008 (Annexure-R/1) had held the following :
that “Based on the recommendations of the committee set up by the Department of Revenue, the pay scales of the Inspectors and Superintendents of Central Excise in the Central Board of Excise & Customs under Department of Revenue were upgraded vide OM No.6/37/98 dated 21.4.2004 with a view to maintain their relativity with corresponding posts in CBI/IB.”(Annexure-R/12.)
9. It is humbly submitted that the Hon’ble CAT, Mumbai Bench vide para 18 to OA No.86/2008 (Annexure-R/1) had held the following :
“18. For the purpose of our
reference, the concluding portion of the noting in the Ministry as produced by the applicant’s counsel at the time of
arguments (which has not been denied or objected by the counsel for the
respondents) received under the
provisions of RTI Act,2005 may be extracted and the same reads as under :-
13.To sum up, it may be mentioned that in no two organisations, the assigned duties of comparable posts can be totally identical and so is the case with the Inspectors of CBI, IB, Central Police Organisations, Customs, Income Tax and Central Excise. However, the 3rd, 4th and 5th pay commissions by assigning identical pay scales to the Inspectors of CBI, IB, Central Police Organisations, Inspectors of Income Tax, Customs and Central Excise have established the comparable nature of the level of responsibilities assigned to the Inspectors of each of the categories mentioned above. This was also up held by the committee set up by the former Finance minister on this subject as well as in the judgement dated 22.3.2002 of Jabalpur Bench of CAT. In view of this, it may be perhaps be appropriate if the instant proposal of Department of Revenue to up-grade pay scales of the posts of Income Tax Inspectors and Income Tax Officers to Rs.6500-10500 and 7500-12000 with prospective effect is approved. A similar dispensation will also need to be extended to analogous posts in CBEC as the posts in these two departments have a distinct relativity and have always been on par. This would also be in consonance with the decision taken at the time of upgrading pay scales of the posts
of various Accounts staff wherein the higher pay scales necessitated in Ministry of Railways
(on account of their established relativity vis-a-vis the commercial clerks in that Ministry having been disturbed) was extended to analogous posts in all the Organised Accounts Department of the Central Govt. The financial implication of the proposal would consequently be around Rs.12 crores per annum.”
13.To sum up, it may be mentioned that in no two organisations, the assigned duties of comparable posts can be totally identical and so is the case with the Inspectors of CBI, IB, Central Police Organisations, Customs, Income Tax and Central Excise. However, the 3rd, 4th and 5th pay commissions by assigning identical pay scales to the Inspectors of CBI, IB, Central Police Organisations, Inspectors of Income Tax, Customs and Central Excise have established the comparable nature of the level of responsibilities assigned to the Inspectors of each of the categories mentioned above. This was also up held by the committee set up by the former Finance minister on this subject as well as in the judgement dated 22.3.2002 of Jabalpur Bench of CAT. In view of this, it may be perhaps be appropriate if the instant proposal of Department of Revenue to up-grade pay scales of the posts of Income Tax Inspectors and Income Tax Officers to Rs.6500-10500 and 7500-12000 with prospective effect is approved. A similar dispensation will also need to be extended to analogous posts in CBEC as the posts in these two departments have a distinct relativity and have always been on par. This would also be in consonance with the decision taken at the time of upgrading pay scales of the posts
of various Accounts staff wherein the higher pay scales necessitated in Ministry of Railways
(on account of their established relativity vis-a-vis the commercial clerks in that Ministry having been disturbed) was extended to analogous posts in all the Organised Accounts Department of the Central Govt. The financial implication of the proposal would consequently be around Rs.12 crores per annum.”
10.It is respectfully submitted that once comparison between
two posts for grant of equal pay scale is made and accepted denial of the benefits to the
Applicants of revised pay scale from the date when such disparity arose i.e.
01.01.1996, by the Respondents amounted to violation of article 14 and 16 of
the constitution as held by Department
of Legal Affairs (Annexure-R/2). In accordance with the observation of Hon’ble
CAT, Mumbai Bench in OA No.86/2008
(Supra) the Inspectors of Central Excise were entitled to get the higher
pay scales w.e.f. 01.01.1986 at par with the pay scale granted to the post of
Inspector CBI as per the recommendations of 4th and 5th Central Pay
Commission. The 6th pay commission had observed
that recommendations made with reference to the post of Inspector are also
applicable to the post of Superintendent
of Central Excise. When this fact is admitted that the nature of duties of the Superintendent of Central Excise are
arduous comparatively those of CBI and IB, these appears no reasons as
to why the post of Superintendent Central Excise should not be provided the same pay scale at par with the Chief Enforcement Officers & DYSP/CBI w.e.f. 01.01.1986.
By providing a lower pay scale to the post of Superintendent of Central Excise from a prospective date (w.e.f. 21.4.2004) instead of 01.01.1996, the Respondents
have violated the provisions of Article 14 and 16 of the Constitution of India.
11.It is respectfully submitted that about the prospective date, the Hon’ble CAT Mumbai
vide para-25 of OA No.86/2008 (Annexure-R/1) had held the following :
“25. – In the case in hand, the officer on special duty in the Ministry of Finance only stated
“with prospective effect” and no reasons as to why the pay scale should not on notional basis
from the date on 01.01.1996 has been spell out. The deciding authority i.e. the Hon’ble Minister
also did not consider the same. The fact that higher pay scale to the applicants would be in
consonance with the decision in the case of Accounts cadre has been specifically mentioned.
In the absence of any material to justify different date of implementation, rejection of the case
of the applicants for uniform date of implementation (01.01.1996 on notional basis) cannot be
held to be legally valid. For, there is no intelligible differentia or reasonable classification to justify such disparity. It has been stated in the aforesaid case of Union of India Vs Bijoy Lal Ghosh as under :
29. It is always possible to exclude any class based on reasonable classification from the benefit under any policy decision, the classification having direct nexus with the object sought to be achieved. But in the present case, in absence of any material placed, we do not find any such so far as the respondents are concerned. Reading that would be arbitrary and violating of Article 14 of the Constitution. In the present case, we find that the Government has stoutly supported the recommendations and the same is said to have been implemented in the Union Territories and some of its departments.”
It is respectfully submitted that as regards Accounts cadres, the Honourable CAT , Ernakulam in OA No. 671/2003 in the case of Jose Sebastian & others vrs. Union of India had held that Junior Accounts Assts. of Railways were entitled to the benefit of revised pay scales calculating arrears of pay w.e.f. 01.01.96. This order of Honourable CAT has been up held by Honourable High Court of Kerala vide WP(C )-No 22276 of 2007 ( Z) & Honourable Apex Court vide Appeal ( Civil) CC 1997/2013.
to why the post of Superintendent Central Excise should not be provided the same pay scale at par with the Chief Enforcement Officers & DYSP/CBI w.e.f. 01.01.1986.
By providing a lower pay scale to the post of Superintendent of Central Excise from a prospective date (w.e.f. 21.4.2004) instead of 01.01.1996, the Respondents
have violated the provisions of Article 14 and 16 of the Constitution of India.
11.It is respectfully submitted that about the prospective date, the Hon’ble CAT Mumbai
vide para-25 of OA No.86/2008 (Annexure-R/1) had held the following :
“25. – In the case in hand, the officer on special duty in the Ministry of Finance only stated
“with prospective effect” and no reasons as to why the pay scale should not on notional basis
from the date on 01.01.1996 has been spell out. The deciding authority i.e. the Hon’ble Minister
also did not consider the same. The fact that higher pay scale to the applicants would be in
consonance with the decision in the case of Accounts cadre has been specifically mentioned.
In the absence of any material to justify different date of implementation, rejection of the case
of the applicants for uniform date of implementation (01.01.1996 on notional basis) cannot be
held to be legally valid. For, there is no intelligible differentia or reasonable classification to justify such disparity. It has been stated in the aforesaid case of Union of India Vs Bijoy Lal Ghosh as under :
29. It is always possible to exclude any class based on reasonable classification from the benefit under any policy decision, the classification having direct nexus with the object sought to be achieved. But in the present case, in absence of any material placed, we do not find any such so far as the respondents are concerned. Reading that would be arbitrary and violating of Article 14 of the Constitution. In the present case, we find that the Government has stoutly supported the recommendations and the same is said to have been implemented in the Union Territories and some of its departments.”
It is respectfully submitted that as regards Accounts cadres, the Honourable CAT , Ernakulam in OA No. 671/2003 in the case of Jose Sebastian & others vrs. Union of India had held that Junior Accounts Assts. of Railways were entitled to the benefit of revised pay scales calculating arrears of pay w.e.f. 01.01.96. This order of Honourable CAT has been up held by Honourable High Court of Kerala vide WP(C )-No 22276 of 2007 ( Z) & Honourable Apex Court vide Appeal ( Civil) CC 1997/2013.
The Honourable Apex Court in Appeal ( Civil) No 5866 of 2000 in the case of State of UP & others vrs. U.P. sales Tax Officers ( decided on 16.04.2003 ) had held that the persons who were carrying pre- revised scale of pay could not have been discriminated vis-vis the persons who also carried the same pre revised scale of pay and arrears of pay should be granted from the date of initial filing of the case.
12.It is respectfully therefore
prayed to this Hon’ble Tribunal to allow the present OA duly granting all the consequential reliefs and rejecting the impugned
order.
