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.
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.
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.
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.
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.
Since
the petitioners No – 1 and 2 represent quite a number of members and some of
them have retired from service in the meanwhile and decision of the Association
is required authorising to the office bearers to file the writ petition, Petitioners
could not file this writ petition immediately after the judgment of the
Tribunal.
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.
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.
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
