" IRS OFFICERS PROMOTED FROM THE GRADE OF SUPERINTENDENT OF CENTRAL EXCISE ARE ALSO MEMBERS OF AIACEGEO. THIS IS THE ONLY ASSOCIATION FOR SUPERINTENDENTS OF CENTRAL EXCISE AND IRS OFFICERS PROMOTED FROM THE GRADE OF SUPERINTENDENT OF CENTRAL EXCISE THROUGH OUT THE COUNTRY . President Mr.T.Dass and SG Mr. Harpal Singh.

Tuesday 16 July 2013

Regional disparity in promotion.


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          We have already clarified that the cadres of Inspector and Superintendent are not falling under any service ( like CSS, IRS etc.) The promotions to the post of Superintendent are being  awarded on the basis of the valid  Superintendent of Central Excise Recruitment Rules  which has been issued under the provisions article 309 of the Constitution of India.  This RR has been providing for promotion on CCA (Zonal ) basis. Therefore Seniority Lists as per DOPT guidelines are being issued in the cadre of Inspector of Central Excise on Zonal basis since creation of this department.  This  RR was challenged in High Court of Andhra Pradesh by Supdts. Association of Hyderabad and one Mr.Laxamana Rao. But High court rejected the writ and up held the RR as valid one. Against such decision of High Court, Hyderabad Association moved to SC but SC rejected the petition.    It is a one line order.,WP no.3835 of 1981.."The wp has become infructuous and accordingly dismissed .No costs. 'on 24/9/1996.However another linked matter WP nos 512 and 835 of 1988 was disposed relying on Gaya baksh yadav caseJT 1996 (5)SC 118.The contention of mr.Rao in the petn was for all india SL of Insprs or count total service as inspr and supdt considering the disparity in various commtes.It was also pleaded that if each commte is treated as separate.then separate quota must  be allotted just like cus apprs and supdts. Of course, the case was linked with 306/88 at various stages but disposed differently.. WP No 302/88 was filed by both the Federations of Inspectors and Superintendents jointly The Gr-A RR published on the basis of the decision in WP no 302/88 was valid up to October 2011. In the petition both the Federations have accepted promotions on regional/zonal basis.    The honourable Apex Court in 302/88 had directed to cast seniority list of Superintendents of  Central Excise basing on the date of joining in the post of Superintendent of Central Excise on All India basis.
 Moreover creation of CCAs is a policy decision , which can not be challenged in CAT. Therefore those joined in the grade of Supdt early are seniors to those joined in the grade of Supdt subsequently irrespective of date of joining in Inspector grade. The Guideline of DOPT vide OM NO. AB-14017/12/88-ESTT  is not helpful for removal of regional disparity in promotions. FR  has also accepted for creation of separate cadre on regional basis for which step up of pay  is not allowed to seniors of other zones. After a long time without knowing the back grounds of the issue, few units of AIACEGEO are  raising  the issue of regional disparities in promotions and asking that the promotions to the post of Asstt. Commissioner should be granted on the basis of joining in the Inspector cadre. They insisted that the combined length of service as Inspector + Superintendent should be counted for the grant of promotion to the post of Asstt. Commissioner by treating the already promoted senior Superintendents as ad hoc.  Actually AIACEGEO is  pursuing the matter of parity with the common entry counterparts which automatically solve this problem. The AIACEGEO has already filed a case in the CAT for parity in promotions with the Examiners as the Examiner of 1992 has already become Asstt. Commissioner.  Therefore at this stage  no one  should  engage themselves  with intra-Central Excise fighting. Instead of it, we should fight unitedly with common opponents to get actual relief. This would  also cause litigations in the legal courts and nobody among us would be able to get any benefit from cadre restructuring while others would enjoy it. No rule permit to place any senior Superintendent to lower position and grant him/her ad hoc status..
Thousands of our senior Superintendents are already waiting for the implementation of cadre restructuring expecting for next promotion at the fag end of the career. The issue should have been taken up at the time of arising of these regional disparities in the promotions to the post of Superintendents from Inspectors. Moreover, regional disparities will automatically be removed if we are able to get parity with Examiners & other counterparts. The issue of regional disparities is basically related to the Inspectors Association regarding promotion of Inspector to the post of Superintendent. The promotion to the post of Asstt. Commissioner can never be granted by counting the length of service rendered as Inspector to remove the regional disparities.
Not only in Central Excise Department but also in other departments such as Income Tax, Railways, Postal &  Audit etc. there is a provision for preparation of seniority list on Zonal basis as per guidelines prescribed by DOPT. This has been confirmed by Apex court in catena of judgements including Union of India Vs. N.R. Parmar (Supreme Court Judgement  2012 STPL(Web) 687 SC ) Thus it is totally incorrect that Board has not correctly observed the guidelines of DOPT in preparing the seniority list of Inspectors on zonal basis. Under the circumstances promotions to the post of AC can not be allowed retrospectively on the basis of  all India seniority list for the cadre of Inspector .Certain provisions of RR can be relaxed but such relaxation can not be made overlooking the provisions of another  RR and the guidelines of DOPT on the matter of fixation of seniority .
Therefore as per the present provisions of Law, the regional disparity in promotions can not be removed retrospectively. Since AIB has already filed a case in CAT for base cadre parity in promotion as per the resolution of AC meeting  held in Delhi  and the matter at present  is subjudice,    AIB can not change it stands  and submit another  representation on a different footings.   
The Honourable  SUPREME COURT OF INDIA  in  TEJ PRAKASH PATHAK & OTHERS  Appellants
VERSUS  RAJASTHAN HIGH COURT & OTHERS  -Respondents
Civil Appeal No. 2634-2636 of 2013-Decided on 20-3-2013 have  petrified into a rule of law in the context of  employment under the State about  ‘rules of the game’ which cannot be changed after the game is either commenced or played.  
 The question whether the ‘rules of the game’ could be changed was considered by  Honourable Apex  Court on a number of occasions in different circumstances. Such question arose in the context of employment under State which under the scheme of our Constitution is required to be regulated by “law” made under Article 309 or employment under the instrumentalities of the State which could be regulated either by statute or  subordinate legislation. In either case the ‘law’ dealing with the recruitment is subject to the discipline of  Article 14.  Legal relationship between employer and employee  is essentially contractual. Though in the context  of employment under State the contract of employment is generally regulated by statutory provisions or  subordinate legislation which restricts the freedom of the employer i.e. the ‘State’ in certain respects.   In the context of the employment covered by the regime of Article 309, the ‘law’ – the recruitment  rules in theory could be  prospective  only.
  In the context of employment under the instrumentalities of the State which is  normally regulated by subordinate legislation, such rules cannot be made retrospectively .  Under the Scheme of our Constitution an absolute and non-negotiable prohibition against  retrospective law making is made only with reference to the creation of crimes. Any other legal right or obligation could be created, altered, extinguished  retrospectively by the sovereign law making bodies. However such drastic power is required to be exercised in a manner that it does not conflict with any  other constitutionally guaranteed rights, such as, Articles 14 and 16 etc. Changing the ‘rules of game’ either midstream or after the game is played is an aspect of retrospective law making power.
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