" 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. A. Venkatesh and SG Mr. Ravi Malik.

Thursday, 31 May 2018

Arrears case in Cuttack High Court in r/o Inspectors

IN THE HIGH COURT OF ORISSA; CUTTACK
WP(C) NO  ___________/2018

IN THE MATTER OF :
An application under Article 226 and 227 of the Constitution of India.
AND
IN THE MATTER OF :
Judgment dated 02.10.2017 of the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No – 292 of 2011.
AND
IN THE MATTER OF :
1.    All India Association of Central Excise Gazetted Executive Officers, Odisha Unit Bhubaneswar, represented by its General Secretary, Rabi Narayan Mohapatra, aged about 50 years S/o Baidya Nath Mohapatra,
         
2.    All India Association of Central Excise Gazetted Executive Officers represented by Secretary General Ravi Malik aged about 57 years S/O Late Sh. Mahabir Singh residing at   240, Razapur, Ghaziabad, Dist.- Ghaziabad, Pin -201001 (U.P.)

3.    Asish Kumar Panda, aged about 50 years, S/o Sarat Chandra Panda, residing at 10, Parvati Villa, Ph – I, Po – KIIT, Bhubaneswar
4.    Lokanath Mishra aged about 62 years S/O Babaji Mishra residing at Jena Math Lane Near Panchu Chaura, Puri - 752001
…….  PETITIONERS 
-VRS-
1.  Union of India, represented by its Secretary, Ministry of Finance and Company Affairs, Department of Revenue, North Block, New Delhi, PIN – 110001.
2.  Chairman. Central Board of Indirect Tax and Customs (Previously Central Board of Excise and Customs), North Block, New Delhi, PIN – 110001
3.  The Chief Commissioner, CGST, Central Excise and Customs(previously  Central Excise, Customs & Service Tax), Bhubaneswar Zone, C.R.Building, Bhubaneswar - 751007
                                                                             …. OPPOSITE PARTIES
The subject matter of this petition was never before this Hon’ble Court as per the instruction of the petitioners.
To,
The Hon’ble Shri Justice Vineet Saran, LLB, the Chief Justice of the High Court of Orissa and his Lordship’s companion Justices of the said Hon’ble Court.
The humble petition of the petitioner above named
MOST RESPECTFULLY SHOWETH:
1.            That in this Writ Petition, Petitioners have challenged the Judgement dated 02.10.2017 of the Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No – 292 of 2011 filed by the Petitioners No. 1 & 3 and No.4 as General Secretary of the Association praying therein for quashing the office order No – I (10) (4) 5/LAW/BBSR – II / 2006 / 4233A dated 05.03.2010 issued by the respondent No – 3 along with the orders F No – A – 26017/65/2006 – Ad. IIA dated 09.02.2010 issued under the authority of Government of India. Petitioners have prayed for appropriate directions to the Opposite Parties to pay the scales of pay Rs. 2000 – 3200/- w.e.f. 01.01.1986 and Rs. 6,500 – 20,500/- w.e.f. 01.01.1996 to the cadre of inspector of Central Excise & Customs with all service benefits.

2.            That the cause of action for this writ petition arose within the territorial jurisdiction of this Hon’ble Court and the facts constituting the cause of action is briefly stated as hereunder.

3.            That the Petitioner No.1 is the All India Association of Central Excise Gazetted Executive Officers, Bhubaneswar Unit formerly known as All India Federation of Central Excise Gazetted Executive Officers, Bhubaneswar Unit. The Petitioners No.2 is the All India Association of Central Excise Gazetted Executive Officers.  The Petitioner No.3, is a Superintendent (Group-B), Central Excise and Customs promoted from the cadre of Inspector of Central Excise and at present under deputation to Enforcement Directorate. The Petitioners 4 is a retired Asst. Commissioner (promoted from the grade of Superintendent/ Inspector) of Central Excise and Customs.
4.            That the members of the Petitioner No – 1 Association have been working as Superintendent and Assistant Commissioner of Central Excise and Customs/promotee group A officers from Central Excise/CGST stream in Odisha who were promoted to the grade of Superintendent from the grade of Inspector. The members of the Petitioners No.2 i.e.  the All India Association of Central Excise Gazetted Executive Officers have been working as Superintendent and Assistant Commissioner of Central Excise and Customs/promotee group A officers from Central Excise/CGST stream/promotee group A officers from Central Excise/CGST stream throughout India who were promoted from the grade of Inspector. The petitioner No.1 is one of the affiliated units of Petitioner No.2. 
5.            That the Petitioners had prayed in the Original Application to the CAT for direction to allow them upgraded pay scale of Rs.2000-3200/- w.e.f. 01.01.1986 and Rs.6500 - 10,500/- w.e.f. dt.01.01.1996. Although the respondents enhanced the pay scale for the Inspector of Central Excise and Customs by issuing an order dated 21.04.04 the above order was affected from the date of issue of the order and no order was passed for payment of arrears from the dates of the entitlement .

6.            That before coming into force of the recommendations of the 4th Central Pay Commission, there were two scales of pay for Inspectors Central Excise and Customs. One is   Rs.500-900/- for Inspectors (Ordinary Grade) and Second is Rs.550-900/- for Inspectors (Senior Grade). The Finance Ministry categorically observed in M.F. (DE) F. No. II (A) dated 06.10.87 that the above two scales are deemed to be equivalent and the 4th CPC recommended the merger of Inspector O.G. and Inspector S.G. in Central Excise Department and Common scale of pay of Rs.1640-2900/- was recommended and implemented for Inspectors of Central Excise. Similar pay scale of Rs.1640-2900/- was recommended and implemented for the post of Inspector CBI/IB. However, the Central Govt. enhanced the pay scale relating to Inspectors of CBI/IB  to Rs.2000-3200/- by a 'notification dated 22.09.86 giving effect from 01.01.86 without recommendations of pay commission and also without any increase in their responsibilities despite of the fact that same pay scale was recommended by the pay commission for both categories. The 5th CPC going through the various aspects of the matter and keeping in view of the responsibility, the nature of duties, the qualification, the mode of recruitment etc. relating to Inspectors of Central Excise and Customs as well as the Inspectors of CBI/IB recommended the common scale of pay of Rs.5500-9000/- (pre-revised ) revised to Rs.1640-2900/- to the above two cadres. The equal pay scale for these two cadres were recommended both by the 4th and 5th C.P.C. taking into account the different aspects of the matter of fixation of pay but the Central Govt. revised the pay scale of Inspectors CBI/IB to Rs.6500- 10,500/-  w.e.f.  01.01.1996 by an order dated 10.10.97 again without recommendations of pay commission and also without any increase in their responsibilities and unfortunately also without enhancing the  pay  scale Inspectors   of Central   Excise   and  Customs despite of the fact that same pay scale was recommended by the pay commission for both categories.
7.            That All India Federation of Central Excise Executive Officers and others individual applicants repeatedly represented the Respondents to enhance their pay scale equal to their counterparts in CBI/IB from the day the pay parity was disrupted by the Central Govt. in enhancing the pay scale relating to Inspectors of CBI/IB by issuing the notification dated 22.09.1986 w.e.f. 01.01.1986, i.e. the date of implementation of the 4lh C.P.C. The Inspectors of Central Excise & Customs were subjected to hostile discrimination by allowing lesser scale of Rs. 1 640-2900/- and at the same time allowing the higher scale of pay of Rs.2000-3200/- to the Inspectors of the CBI/IB in spite of the recommendations of the Pay Commission to retain the parity and not to disturb the scale of pay for either of the department. On several times agitations were carried out by the Executive Officers Staff Federation. In Department Council meeting (JCM) were also held to settle the same by upgrading the pay scale at par with their counter parts in CBI / IB.

8.            That as the representations, the agitations and council meetings
could not yield any result, all India Federation of Central Excise Executive
Officers and some Inspectors filed O.A. No. 541/94 before the Hon'ble
CAT, Jabalpur Bench, Jabalpur with a prayer to direct the respondents to
grant the pay scale of Rs.2000-3200/- w.e.f. 01.01.1986 as granted to their counter parts in CBI/IB. The Hon'ble CAT, Jabalpur Bench, Jabalpur by order dated 24.02.1995 was pleased to observe that by looking at the 4th   CPC recommendations, it transpires that the pay scale of Inspectors of Central Excise and Customs were  intended  to  bring at par with the
Inspectors of CBI/IB and the applicants had a strong case for consideration
of parity by the 5th CPC. The Respondents were directed in the above case
to refer the matter to the 5th Pay Commission and it was further directed to place the applicants in the pay scale of Rs.2000-3200/- from the date their counterparts in CBI/IB have been placed in the said scale, if pay commission recommends same pay scale for both categories clearly
directing the govt to pay the arrears of pay to the Central Excise Inspectors since when the pay scale of CBI Inspector was enhanced.
The copy of the Judgment dated 24.02.1995 passed by the Hon'ble CAT, Jabalpur Bench  in  O.A.  NO-  541/94   is  attached  herewith  as ANNEXURE-1.

9.            That the 5th CPC went through the judgment of the above O.A. as Revenue Department referred the matter for placing the Inspectors Customs and Central Excise in the pay scale of Rs.2000-3200/-. After reviewing the overall situations and the observation given in the judgment passed by the Hon'ble CAT, Jabalpur Bench, Jabalpur, the 5th CPC decided not to disrupt the parity and to place the Inspectors of CBI/IB in the pay scale of Rs.1640-2900/- instead of Rs.2000-3200/-. As a consequence of this recommendations, as observed by the 5th CPC the demand relating grant of higher pay scale, that too with retrospective date, to the Inspectors of Income Tax, Central Excise Deptt. etc. has become Infructuous. But as per the directions of the Jabalpur CAT, the Central Excise Inspectors should have been paid the arrears of pay of a higher pay scale under which CBI Inspectors were placed since 01.01.86. It is also worth to mention that the said order of Jabalpur CAT has neither been appealed nor implemented till date by the govt. and also no arrears of pay were paid to Central Excise Inspectors. However the Govt. has not accepted the recommendations of 5th CPC in respect of Inspectors of CBI/IB and allowed replacement scale of Rs.6500-10500 by an order dated 10.10.97, which is equivalent to Rs.2000-3200/- in the pre-revised scale. It is reiterated that it was done without recommendations of pay commission and also without any increase in their responsibilities despite of the fact that same pay scale was recommended by the pay commission for both categories.

10.         That the 3rd, 4th & 5th CPC had recommended similar pay scale for the Inspectors of Central Excise, IB and CBI. After the recommendations of 4th CPC fixed similar pay scales for Inspectors of Central Excise, CBI/IB, Income Tax etc. but by virtue of a subsequent notification dated 22.09,1986 the pay scale of Inspectors of CBI and IB were increased to Rs.2000-3200/-   w.e.f.   01.01.1986 without recommendations of pay commission and also without any increase in their responsibilities despite of the fact that same pay scale was recommended by the pay commission for both categories and thus   the parity   in pay scale maintained earlier by all the Pay Commissions were disturbed.

11.         That because of the persistent demands by the Federation and the Staff Association, a press not was issued by the Finance Ministry dated 01.07.1998. constituting one expert committee consisting of Chairman, CBDT, Chairman CBEC, Member (P & V), CBDT Member (P & V) CBEC to examine the grievances of Executive Officers of CBEC and CBDT relating to enhancement of their pay scales and make appropriate recommendations. The High Power Committee was constituted because the 5th CPC could not consider the matter entering deeply into the situation as the judgment of the Hon'ble CAT, Jabalpur Bench was issued in the month of February 1995 and the Commission has to submit report earlier. The High Power Committee after examining the issues forms various aspects has come to the following conclusion.

     The committee felt since there had been no alternation in the duties of the Inspectors failing in the two categories, it is reasonable to expect that the Inspectors of CBEC/CBDT should be given a replacement scale of RS.2000-3200/- at par with the Inspectors CBI/IB whose duties and responsibilities are comparable. There has been no reduction or diminution in the duties and responsibilities of the executive staff in CBEC/CBDT. In fact they are engaged in revenue collection, detection and investigation and economic offences, search, seizures etc. involving considering considerable risk to their persons. The Committee therefore considered and decided to recommend the scale of RS.2000-3200/- (pre-revised) but felt that while recommending the scale of Rs.2000~3500/-, they need not be given the status of Group-B.

     The High Power Committee in their report interalia observed that till the 4lh Pay Commission, there was parity in the pay scale of CBEC/CBDT and those of CBI/IB. This parity was disturbed by the order of the Govt by issuing the circular No. F951(l)/IC/86 dated 22.09.86 when the later were placed in the higher pay scale of Rs. 2000-3200/-. The recommendations of High power committee along with its report is attached herewith ANNEXURE-2.
12.         That All India Federation of Central Excise Executive Officers and one K.P.S. Ray, Inspector again approached the Hon'ble CAT, Jabalpur Bench by filing O.A. No. 45/2000 and Hon'ble CAT by judgment dated 22.03.02 categorically observed that the action of the govt. to deny the applicants pay scale at par with those Inspectors of CBI/IB is violative of article 14 and 16 of the Constitution of India and the Respondents were directed to reconsider the Claim of the Petitioners for being accorded the pay scale, at par with the Inspectors of CBI/IB having regard to the observation made by the Hon'ble Tribunal.                          
This is respectfully submitted herein that the observations of Hon'ble Tribunal as explained here below are binding on the Central Government.
A)   As per the observation of the Hon'ble Tribunal in O.A. No. 541/94 dated 23.02.95, subject to the Pay Commission's findings the applicants should be placed in the Pay scale of Rs.2000-3200/- from the date their counterparts in CBI have been placed as such i.e. from 01.01.1986. To this effect, a letter/circular addressed to all Principal Collectors and Collectors was also issued by the Govt. vide F. No. A-26017/44/94-Ad II(A) Dated 08.03.1995.

B)   As observed in O.A. No. 541/94 there has been every reason to assume that there exists no cogent reasons to create disparity in the pay scale of Inspectors of Central Excise & Customs as well as CBI/IB the applicants have a strong case for consideration of parity of pay by the 5th CPC.
C)  The 5th CPC observed that Inspectors in Central Excise & Customs are not comparable with the Inspectors of Police 'Organisation but as far as CBI/IB are concerned having noted the anomaly in their recommendation at para 66.119 placed the CBI/IB in the replacement scale corresponding Rs.1640-2900/- removing the anomaly at par with Inspectors, Central Excise and Customs.

D)  The 5th CPC had found that the Inspectors of Central Excise & Customs and CBI/IB are at par and meted out to them similar treatment.

E)   As regards the nature of duties, discharge of liabilities, educational qualification and mode of recruitment, the Ministry of Finance Department of Revenue by letter dated 27.10.1995 wrote to the 5th CPC that the duties and responsibilities performed by the Inspectors are more arduous and hazardous than the Inspectors of Delhi Police and CBI and accordingly recommended the parity in the pay scale.

F)   The recommendations of the High-Power Committee constituted by the Finance Minister to accord higher pay scale to the Inspectors of Central Excise at par with CBI and IB has been approved by the Secretary, Revenue as well as Minister for the State who was also holding the charge of Ministry of Personnel.

G)  The recommendations of the High Power Committee have been approved and cleared but was not acceded to by the Department of Expenditure at the relevant point of time. The observation of the 5th CPC in Para 66.118 and 66.1 19 that the Inspectors are not comparable with that of only Police Organisation. The same does not interalia include the CBI/IB do not come within the preview of the aforesaid organisation and cannot be treated as such.

H)  The High Power Committee recommended the higher pay scale to the Inspectors of Central Excise and Customs after going into all the aspects and factors for determination of pay scale i.e. eligibility, educational qualification, nature of duties and responsibilities as well as professional skills and Inspectors of Central Excise & Customs have been found at par with the Inspectors of CBI/IB.

I)     Subsequent   decision   of the   Govt.   by   dis-agreeing   with   the
recommendations of the expert body as far as Inspectors of Central Excise
is concerned and recommending the pay scale of Rs.2000-3200/- to the Inspectors of CBI/IB  vide order dated 06.10.87  certainly  created an anomaly in the pay scale between two equally placed sets of employees and the above decision is without any logic rational and resulted in hostile discrimination   between   the   two   sets   of  employees   in   the   Central Government Department having been treated alike by the 5th CPC.

J)   The Tribunal can interfere in the matter of pay scale basing on the ratio of P.V. Hariharan decided by the Hon'ble Supreme Court in the matter of Union of India - Vrs - Hariharan reported in 1997 (L & S) page 838 if there exists a hostile discrimination between the two sets of employees similarly situated without any justification.
13.     That after the judgment was pronounced in O.A. No. 45/2000 with observation that the action of the Govt. to deny the Inspectors, Central Excise Deptt. Pay scale at par with those of Inspectors of CBI/IB was violative of articles 14 & 16 of the Constitution, the matter was examined by the law department. The department of Legal Affairs while observing that no infirmity existed in the Judgment had advised to grant  similar pay scale as recommended by High power Committee, but the same could not find favourable consideration by the Govt. for the reasons best known to them. If this fact is admitted that the nature of duties of the Inspectors of Central Excise and Customs are more arduous and hazardous then those of CBI/IB there appears no reason as to why they should not be provided the same scale and it appears that it is violative of article 14 & 16 of the Constitution.
          The copy of the Judgment dated 22.03.2002 passed in O.A. No. 45/2000  by  Hon'ble  CAT,  Jabalpur  Bench  is  attached  herewith  as ANNEXURE -3
This is respectfully submitted here that ultimately the Govt. accepted the recommendations of High Power Committee and it has principally agreed to the observation and directions issued by the Hon'ble CAT, Jabalpur Bench Jabalpur in O.A. No. 541/94 dated 24.02.95 and O.A. No.45/2000 dated 22.03.02 and allowed the higher scale of pay to the   Inspectors Central Excise & Customs from the existing pay scale of Rs. 5500-9000/- to higher scale of Rs.6500-10500/- by issuing office memorandum dated 21.04.04 and the above pay scale was given effect immediately but no arrears of pay as directed by the Jabalpur CAT were paid.
The copy of the office order dated. 21.04.04 to the above effect is annexed herewith as ANNEXURE - 4.
14.     That one Sri Lokanath Mishra and one Subhendu Mohanty approached this Hon'ble Tribunal by filing O.A. No. 473/2003 to direct the respondents to grant pay scale of Rs. 6500-10500/-. Although the
Respondents filed their counter and contested the matter, during pendency
of the O.A. granted the higher scale of pay of Rs. 6500-10500/- with effect
from 21.04.04 and the O.A. was disposed of on
11.01.2005 by observing that  adjudication on the above issue for allowing higher pay scale comes to an end and nothing
more to be adjudicated in this issue. However, the applicants were given
liberty to find out remedies available to them to effect the above higher pay
scale from 01.01.86 / 01.01.96 at per with the Inspector of IB/CBI.
Thereafter one representation was preferred by Lokanath Mishra, General
Secretary, All India Association of Central Gazetted Executive Officers,
Bhubaneswar Unit, requesting to pass necessary orders for enhancement of pay scale of Inspectors, Central Excise and Customs from Rs. 1640-2900/-to Rs.2000-3200/- with effect from 01.01.86 and from 5500-9000 to 6500- 10500/- with effect from 01. 01. 96.
         The copy of the order passed on 11.01.2005 by the Tribunal is marked as ANNEXURE – 5
The Member (P & V) Central Board of Excise and Customs, New Delhi by his order-dated 02.08.2005 rejected the representation without any reason. True Copy of order dated 02.03.2005 is annexed as ANNEXURE – 6.
As the Respondents rejected the genuine claim of the Inspectors, Central Excise & Customs by order dated 02.08.05 and denied to give the enhanced scale of pay from the retrospective dates of 01.01.86 and 01.01.96 as explained above the Petitioners moved the Central Administrative Tribunal, Cuttack by filing O.A. No. 180/06 which was disposed off on 20th November, 2009 with certain specific directions as would be evident from the copy of the judgment annexed as ANNEXURE - 7.
15.     That the honorable Tribunal Cuttack Bench while disposing the O.A. in annexure - 7, observed as follows;
A)      Pay Commissions Recommendations can be accepted or neglected by the Govt. pursuant to its policy decision but the state action itself be fair and reasonable. The state action should not suffer from arbitrariness or non application of mind.
B)      Although the applicants submitted their grievances in logical manner, the respondents turned down the same without disclosing any reason except stating that there would be avoidable repercussion.
C)      The order of rejection does not disclose as to what is the avoidable repercussion.
D)      If the nature and level of responsibility of both the posts are not
the same then why the same scales alone granted to the applicants from a later date.
E)      The entire matter needs re consideration afresh by considering the grounds put forth in the representation and various decisions relied upon by the applicant and extracted in the judgment.
16.     That however, without considering the points raised in the representation annexure 6 and the grounds put forth by the applicants in the various decisions relied upon by the petitioners and quoted by this Hon’ble Tribunal the competent authority and purely in mechanical manner passed order dated 09.02.2010 rejecting the claim of the petitioners resulting in serious miss carriage of Justice.
The above order dt. 09.02.2010 passed by the respondent is attached here with as ANNEXURE - 8.
17.     That it is respectfully submitted that the Administrative Department Ministry of Finance, Depart of Revenue by their letter dt. 27.10.95 has specifically stated as follows:-
"The duties and responsibilities being performed by Inspectors of Customs and Central Excise and Preventive Officers are therefore much more arduous and hazardous      than the Inspectors in Delhi Police, C.B.I, etc.
Having regard to the facts mentioned above, the  Department strongly recommended parity in pay scales and other perks of Inspectors of Central Excise/Preventive Officers and Officers of Customs and Inspectors of Narcotics Department with the Inspectors in Delhi Police, CBI etc."
18.     That in spite of the said recommendation, pay scale of the Petitioners were not revised. Representative of the petitioner met Hon'ble Finance Minister and the Finance Ministry issued a Press Note dt. lst July, 98, constituted an Expert Committee consisting of Chairman, CBDT, Chairman, CBEC, Member (P&V), CBDT, Member (P&V) CBEC to go into the grievances of the agitating officers and make their recommendation. The said committee consisting of four specialists and experts of the subject submitted their report to the Government, The committee amongst others has held as follows:-
"The committee felt since there had been no alteration in the duties of the Inspectors falling in the two categories, it is reasonable to expect that the Inspectors of CBEC/CBDT should been given a replacement scale of Rs. 2000-3500/- at par with the Inspectors of CBI/IB whose duties and responsibilities are comparable.
There has been no reduction or diminution in the duties and responsibilities of the executive staff in CBEC / CBDT. In fact they are engaged in revenue collection, detection and investigation of economic offences,   search,   seizures,   etc involving considerable risk to their persons. The Committee therefore, considered and decided to recommend the scale of Rs.2000-3500/-(Pre-received) but felt that while recommending the scale of Rs. 2000-3500, they need not be given the status of Group 'B'".
In spite of this recommendation of the Committee, the pay scale of Rs. 2000-3500 was not released to the Applicants from the relevant date.
19.     That because of such unchallenged specific observations made by the Tribunal as well as the High Power Expert Committee on the subject, the disparity in the pay scale of the Inspectors, Central Excise and Customs should have  been  removed  from the  date  such  disparity  occasioned because the very decision to the remove the disparity in the pay sales from the year 2004 has been taken not as an independent decision but in consequence to the findings, observations and long drawn enquiry made in this issue as stated in detail in the previous paragraphs.
20.     That in the circumstances, Petitioners filed the aforesaid Original Application No – 292 of 2011 before the Hon’ble Central Administrative Tribunal, Cuttack Bench challenging the office order dated 09.02.2010 of the Respondents (annexure -9 ) and for direction to the Respondents for allowing the pay scale of Rs. 2000- 3200/- with effect from 01.01.1986 and Rs. 6,500 – 20,500/- w.e.f. 01.01.1996 to the cadre of Inspector of Central Excise & Customs with consequential service benefits.
True Copy of the Application in O.A. No – 292/2011 (without annexure) is annexed here unto and marked as ANNEXURE - 9
21.     That in the said original application the Hon’ble Tribunal directed notice and the respondents filed a Counter affidavit denying the claim of the petitioners.
True Copy of the Counter affidavit of the Respondent is annexed here unto and marked as ANNEXURE – 10.
As there was misrepresentation of the facts in the said counter affidavit, Petitioner had filed a rejoinder annexed as ANNEXURE – 11.
22.     That after hearing the parties, in total non application of mind and misplaced reliance on some judicial pronouncements, by judgment dated 02.10.2017 the Hon’ble Tribunal rejected the O.A. of the Petitioners. True Copy of the said judgment dated 02.10.2017 is annexed here unto and marked as ANNEXURE – 12.
23.     That in the circumstances, Petitioners have no other alternative efficacious remedy but to move this Hon’ble Court under Article 226/227 of the Constitution challenging the office order dated 09.02.2010 of the Respondents and the judgment dated 02.10.2017 of the Central Administrative Tribunal, Cuttack Bench in O.A. No – 292/2011.
24.     That Petitioners challenged the   order dated 09.02.2010 of the Respondent and order dt 02.10.2017 of the Central Administrative Tribunal in OA No 292 / 2011 on the following other grounds;

GROUNDS
A.       For that, the judgment dtd.02.10.2017 of the learned Central Administrative Tribunal, Cuttack bench is bad in law, shows total non application of mind to the settled position of law laid down by the Hon’ble Supreme Court and different High Courts relating to parity/disparity in scale of pay of employees similarly situated.

B.       For that, the Hon’ble Tribunal though has taken judicial notice of the observation of the Central Administrative Tribunal, Jabalpur bench contained in order dtd.22.03.2002 in O.A.No.45/2000, that the action of the Govt. to deny the applicants pay scale at par with those of Inspectors of CBI/IB as violative of Art.14 and 16 of the Constitution of India, refrained itself from directing the Opp. Parties to remove anomaly in granting the scale of pay to the petitioners at per with their counterparts in CBI/IB, which has resulted in serious injustice to the petitioner.

C.       For that, the Tribunal has taken judicial notice of the explanation given by the Opp. Party in order dtd.09.02.2010 pertaining to the observation of the 5th CPC and 6th CPC that “ the commission as a general rule is not considering the demands seeking retrospective application of some or the other order unless a clear cut and manifest anomaly that cannot be corrected other than through such retrospective revision is made out”, but failed to appreciate that this is a clear cut case of  blatant anomaly in the introduction of scale of pay of two category of employees i.e the petitioners and their counterparts similarly situated, who were being paid same scale of pay till 01.01.1986 and were again paid from 01.01.1996.
D.       For that the Tribunal erroneously accepted the contention in order dtd.09.02.2010 of the Govt. that “the acceptance of proposal of the applicant will attract similar demand from other retrospectively and the financial implication will be quite high and a conscious decision has been taken by the Govt. to avoid similar demands from others and thereby approved the rejection of the claim of the petitioner by the Opp. Parties in Order dtd.09.02.2010.” Many categories have been given benefit of enhanced scale after officers but they were given retrospective effect. For example, pay scale of NCB Superintendents was enhanced in the year 2005 vide U.O. No. 169/1/2005-IC dt. 11.04.05 of the Department of Expenditure leading to the issuance of Order F. No. II/2(38)/2004-Estt. dt. 20.04.05 but they were given its benefit w.e.f. 01.01.96 with actual arrears along with all consequential benefits.

E.       For that the Hon’ble Tribunal failed to appreciate that the administrative Tribunal has been created as a Special Tribunal to take decisions in such matter relating to employment which are/were being decided by the Hon’ble High Court and Supreme Court in matter relating to State Govt. and Central Govt. under Art.226 and 227 of Constitution of India.

F.       For that, the Hon’ble Tribunal erred in fact and law by accepting that the Opp. Parties  have rightly came to the conclusion that the demand raised by the applicants for retrospective implementations of  parity in pay scale at par with Inspectors of CBI/IB is un reasonable and is like to set up as a wrong precedent.

G.       For that the Hon'ble CAT, Jabalpur Bench categorically observed while deciding O.A. No. 541/94 that the Inspectors of Central Excise & Customs are entitled to receive the enhanced scale of pay which was allowed to the Inspectors of CBI/IB from 01.01.86 i.e., the date from which their counterparts in CBI/IB were allowed the higher scale of  pay. The respondents also as a matter of principle agreed with the observation given in two judgments passed by the Hon'ble CAT, Jabalpur Bench and the Law Deptt. has also principally accepted that there is nothing wrong in the judgment passed by the Hon'ble CAT, Jabalpur Bench and the Inspectors of Central Excise Customs are entitled to the higher scale of pay at per with the Inspectors of CBI/IB.

H.       For that law has been well settled by the Hon'ble Supreme Court and various High Courts that once the appropriate authority comes to the conclusion that the claim of parity has to be granted then there is no reason for showing different dates for its effect and the revised pay scale should be given from the same date as in the case of other categories of employees relating to which it is proposed to remove the disparity. By not allowing the higher scale of pay from the date, the similarly situated employees were given, amounts to discrimination and cannot sustain in the eye of Law.

I.         For that the Department of Expenditure while granting higher pay scale to the cadre of Inspector of Central Excise and Customs from Rs.5500-9000/- to Rs, 6500-10500/- have interalia observed that the higher pay scales had to be given because earlier Inspectors of CBI/IB were extended the higher scale of Rs.2000-3200/- (Revised to 6500-10500) as against the existing pay scale of Rs.1640-2900/- (Revised to Rs. 5500-9000/-) thus disrupting the established parity between Inspectors of CBI/IB and those of Central Excise and Customs and Income Tax which had existed till the time 4th pay Commission when all these posts existed in the pay scale of Rs.1640-2900/- (Revised to Rs.5500-9000).

J.        For that the issue was considered by the 5th CPC which had recommended that Inspectors of Income Tax, Central Excise and Customs as well as those of CBI / IB in the scale should be placed in the same scale of Rs. 1640-2900/- i.e. Rs.5500- 9000/-. This was to be done by reduction in the pay scale of Inspectors in CBI/IB from the existing Rs. 6500-10500/- to that of Rs.5500-9000/-. The 5th CPC had therefore established the clear principle that the earlier parity
in pay scale between the Inspectors of CBI/IB was also endorsed by the 4ih
CPC had to be maintained specially when all these posts were not
comparable with the post of Inspectors of Police in Delhi who were
allocated the higher scale of Rs. 6500-10500/- by the 5lh CPC. The pay
scale of Inspectors in CBI / IB however could not be reduced from the scale of Rs.6500-10500/- to Rs.5500-9000/-. Hence in accordance with
recommendations of the 5th CPC, the scale of Inspectors of Income Tax,
Central Excise and Customs / analogous posts had to be brought on par
with that of Inspectors in CBI/IB.

K.       For that the High Power Expert committee had recommended to award replacement scale of Rs. 2000-3200/- to Inspector of Central Excise and Customs etc. As the pre-revised scale of Rs. 2000-3200/- was applicable with effect form 01.01.1986, granting revision in the replacement pay scale with effect form 21.04.2004 had the effect of persisting the anomaly for the period from 01.01.1986 till 20.04.2004.

L.        For that the Member (P&V) of Central Board of Excise and Customs, New Delhi under letter F. No. A-26017/113/2003 dt. 02.08.2005 had interalia erroneously communicated that "the 5th CPC had not recommended up gradation of pay scales of the posts of Inspectors of Central Excise" whereas the Department of Expenditure had clearly stated that" in accordance with the recommendation of 5th CPC, the scale of Inspector of Central Excise and Customs etc. had to be brought at per with that of Inspectors in CBI/IB".

M.      For that the directions and specific observations of the Tribunal
passed in O.A. No. 180/06 were not taken in to consideration while passing
the impugned order dated 09.02.2010.

N.       For that the Honorable Central Administrative Tribunal, Jabalpur Bench while disposing O.A 541/94 dt.24.02.1995 held as follows.
"A   rending of the report of the IVth   Pay Commission   does provide   inkling   that   the Inspectors, Customs and Central Excise were intended to be brought at per with the Inspectors, Central Bureau of Investigation.
We have therefore every reason to assume that there does not exist cogent reasons for creating a disparity in the pay scale of the above two categories of Inspectors. We were therefore inclined to grant the relief prayed for but taking into account the fact that equalization of pay is the   domain   of an   Expert   Body, we   are restraining ourselves to adjudicate the matter. In the circumstances, we are of the opinion that the    applicants    have    a    strong    case   for consideration of parity of pay by the Vth Pay Commission."
The union of India was further directed to place the Inspectors, Customs and Central Excise in the pay scale of Rs. 2000-3200/- w.e.f the date Inspectors of Central Bureau of Investigation were placed in the said scale and pay arrears in the light of the Vth Pay Commission's findings as a result of the reference made by the Govt.”
O.      For that, the order dtd.09.02.2010 of the Opp. Parties rejecting the claim of the petitioners for allowing the scale of pay Rs.2,000-Rs.3,200/- w.e.f 01.01.1986 and Rs.6,5000-20,500/- w.e.f 01.01.1996 to the cadre of Inspector of Central Excise and Customs with all service benefits is patently illegal, and clear violation of Art.14 and 16 of the Constitution of India and liable to be set aside.
P.       For that, in these circumstances the Judgment dated. 02.10.2017 of the Hon’ble Central Administrative Tribunal, Cuttack Bench in O.A No.292 of 2011 is bad in law and liable to be set aside.
                                     
PRAYER
It is therefore prayed that in fact and circumstances stated above and in the interest of justice, this Hon’ble Court may be pleased to admit this petition and after hearing the parties, issue appropriate writs/ directions/ declaration;
(i)           Declaring that the member of the petitioner’s Association No. 1 & 2 and the petitioner No.3 and 4 are entitled to get the scale of pay of Rs. 2,000- 3,200/- w.e.f 01.01.1986 and Rs.6,500-20,500/- w.e.f 01.01.1996 in the grade of Inspector of Central Excise as was being paid to the Inspectors of CBI/IB during the said period.
(ii)          Quashing/ set aside the order dtd.02.10.2017 passed by the learned Central Administrative Tribunal, Cuttack bench in O.A No.292 of 2011.
(iii)        Quashing the office order dtd.05.03.2010 issued by the respondent No.3 along with order dtd.09.02.2010 issued by the Govt. of India (Annexure-9) declaring the same as illegal and not sustainable in the eye of law.
(iv)        Directing the respondents to grant the pay scale of Rs.2,000 - 3,200/- w.e.f 01.01.1986 and Rs.6,500-20,500/- w.e.f 01.01.1996 to the grade of Inspector of Central Excise  as was being paid by their counterparts i.e inspectors of CBI/IB during the said period.
(v)         Direct the Opposite Parties to grant the consequential reliefs including re fixation of higher pay/pension w.e.f 01.01.1986 with arrear of pay and interest.
And Pass such other orders, issue such other directions, as this Hon’ble Court may deem fit and proper.
And for this act of kindness the petitioner shall as in duty bound every pray.

CUTTACK;                                        BY THE PETITIONER THROUGH DATE :
ADVOCATE




A F F I D A V I T


I, Rabinarayan Mahapatra, aged about 50 years S/o Baidyanath Mahaptra, residing at NR-9, Khandagiri Plaza , Kolathia, PO. Aiginia, Bhubaneswar- 751019, do here by solemnly affirm and state as follows-

1.        That I am the General Secretary of the Petitioner No -1 Association and I am looking after this case on behalf of the Association and Petitioner No – 2, 3 & 4. I am acquainted with the facts of this case.

2.        That facts stated in the petition with affidavit are true to my knowledge based on and derived from the records and my personal knowledge and I believe them to be true.

Cuttack                                                                                                                                                                                                       Deponent
Date:

Identified by


A.C     

C E R T I F I C A T E
Certified that due to non-availability of cartridge papers, this application has been typed on thick white papers.                                                                                                                  
ADVOCATE


IN THE HIGH COURT OF ORISSA: CUTTACK

W.P. (C) No.              of 2018

All India Association of Central Excise
Gazetted Executive Officers & Others                              …. Petitioners                    
 - Versus –

Union of India, represented by its Secretary,
Ministry of Finance and Company Affairs & Others       ….Opposite Parties   

I N D E X
Sl. No.                    Description of Documents                                    Pages

1.                Writ Application                                                            1-

2.                ANNEXURE – 1
The copy of the Judgment dated 24.02.1995
passed by the Hon'ble CAT, Jabalpur Bench
 in  O.A.  NO-  541/94
  
3.                ANNEXURE – 2                                          
The recommendations of High power committee
along with its report

4.                ANNEXURE – 3
The copy of the Judgment dated 22.03.2002
passed in O.A. No. 45/2000  by  Hon'ble  CAT, 
Jabalpur  Bench
 
5.                ANNEXURE – 4
The copy of the office order dated. 21.04.04

6.                ANNEXURE – 5 
                   The copy of the order passed on 11.01.2005
by the Tribunal.
 7.               ANNEXURE – 6
                   True Copy of order dated 02.03.2005

8.                ANNEXURE – 7
                   The Copy of judgment dated 20.11.2009
in O.A. No – 180/06, Central Administrative
Tribunal, Cuttack

9.                ANNEXURE – 8
                   True copy of order dt. 09.02.2010

10.               ANNEXURE – 9
                   True Copy of the Application in O.A. No – 292/2011

11.               ANNEXURE – 10
                   True Copy of the Counter affidavit of the Respondent

12.               ANNEXURE – 11
                    True copy of the Rejoinder filed by the Applicants

13.               ANNEXURE – 12
                   True Copy of the said judgment dated 02.10.2017

VAKALATNAMA
                                                                                               

Cuttack                                                                           ADVOCATE

Date:                                                                      
 FOR THE PETITIONER