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
06.12.2017 of the Central Administrative Tribunal, Cuttack Bench, Cuttack in
O.A. No – 624 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 Mohaptra, residing at NR-9, Khandagiri Plaza,
Kolathia, PO. Aiginia, Bhubaneswar- 751019
2. All India Association of Central Excise Gazetted Executive
Officers represented by Secretary General Ravi Malik aged about 57 years S/O
Mahavir Singh, residing at 240, Razapur, Ghaziabad, Dist. Ghaziabad, Pin
-201001 (U.P.)
3. Gouranga Chandra Roul, aged
about 66 years S/o Padma Charan Roul, residing at Gajapati Nagar, PO. Sainik
School, Bhubaneswar- 751005.
4. Niranjan Pradhan, aged about 62 years S/o Late Ananta Pradhan,
residing at VIM-526, Saila Shree Vihar, Bhubaneswar-751021.
5. 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 06.12.2017 of the Central Administrative
Tribunal, Cuttack Bench, Cuttack in O.A. No – 624 of 2011 filed by the
Petitioners praying therein for quashing order dated 06.10.2010 of Govt. of
India, Ministry of Finance, Department of Revenue, CBEC, rejecting the claim of
the Petitioners for grant of pay scale of Rs. 8,000/- - Rs.13,500/- to
Superintendent, Central Excise w.e.f 01.01.1996 at par with the Deputy
Superintendent of Police, CBI and for the pay scale of Rs. 10,000/- - 325 – Rs.
15,200/- w.e.f 09.08.1999 to those Superintendents who had been granted the
secured financial upgradation under ACP Scheme etc. Petitioners prayed for
appropriate grade pays with effect from 01.01.2006 and to remove the anomaly
retrospectively with effect from 01.01.1986. Petitioners have prayed for
appropriate directions to the Opposite Parties to allow the Petitioner the
above scale of pay for the Central Excise Superintendents with consequential
Financial benefits and for quashing the impugned order dated 06.10.2010 of
Government of India, Ministry of Finance, Department of Revenue, CBEC.
2.
That the cause of action arose within the
territorial jurisdiction of this Hon’ble Court and such constitutes the cause
of action is briefly stated as hereunder.
3.
That the Petitioner 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 the retired Superintendent
(Group-B), Central Excise and Customs. The Petitioners 4 & 5 are retired
Asst. Commissioner (promoted from the grade of Superintendent) of Central
Excise and Customs and have joined as
Petitioners as they were also applicants before the Tribunal (petitioner No.5
was the General Secretary of the Association).
4.
That
the members of the Petitioner No – 1 Association have been
working as Superintendent and Assistant Commissioner including other promotee
group A officers from Central Excise/CGST executive stream working in Central
Excise and Customs in Odisha. 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 including the promotee
group A officers from Central Excise/CGST executive stream throughout India.
The petitioner No.1 is one of the affiliated units of Petitioner No.2. Petitioners 3 to 5 were working as
Superintendent of Central Excise and Customs in Odisha. Petitioners 1, 3 & 4 had filed
O.A. No – 624 / 2011 before the Hon’ble Central Administrative Tribunal,
Cuttack Bench for directing to the respondent for allowing the enhanced pay
scale for Rs. 8,000 – 13,500/- (without ACP) w.e.f. 01.01.1996, allow the pay
scale of Rs. 10,000 – Rs. 15,200/- to those Superintendents who have been
awarded second financial up gradation under ACP Scheme w.e.f 09.08.1999, GP of Rs. 5400 in PB-3 w.e.f 01.01.2006, GP of Rs. 6600 in
PB-3 on completion of 4 years as NFGP w.e.f 01.01.2006, GP of Rs.
7600 in PB-3 to IInd ACP holders as on 01.01.2006 and Grant of consequential
releifs with arrears of pay w.e.f 01.01.86 and interest with all consequential service
benefits. Petitioners prayed for appropriate grade pays with
effect from 01.01.2006 and to remove the anomaly retrospectively with effect
from 01.01.1986. The Petitioners also had prayed to give
appropriate grade pay to the Superintendent of Central Excise and Customs at
par with their counterparts in CBI/IB w.e.f 01.01.2006 and for consequential
benefits.
5.
That the feeder grade for
promotion to the post of Superintendent group-B in
the department of Central Excise & Customs
is "Inspector" and the feeder grade for Promotion to
the post of Dy. Superintendent in the Central Bureau of
Investigation is also Inspector CBI. The Respondents also
admitted that the
duties and responsibilities of
Inspectors or Central Excise & Customs arc much
more Arduous and Hazardous in comparison to the Executive
Officers of Delhi
Police, CBI etc. and recommended
strongly for enhancement of pay scale of Inspectors of Central Excise &
Customs at par with the Inspectors of IB, CBI etc. Two OAs were disposed of by Jabalpur
Bench of CAT with the observation to retain the parity between the
Inspectors of Central
Excise & Customs and CBI/IB
etc.
6.
That all along the
Inspectors of Central Excise & Customs and that of IB/CBI etc. were treated at par having equal scale of pay throughout and the 4th.Pay Commission also "recommended the equal scale of pay of Rs.1640-2900/- for
the Inspectors of all the above Departments. However, this parity was disturbed by issuing the order of Central Govt. dated 22.09.1986 and the pay scale of Inspectors of CBI/IB were enhanced to Rs. 2000-320O/-. Since the date of enhancement of
the scale of pay relating to inspectors of CBI/IB, representations were filed
by the Federation as well as individual officers and the matter was under
consideration by the Govt. on the question of maintaining parity between the
Inspectors of all the above Departments. The matter was placed before the 5th
pay Commission at a later stage and the Commission observed to retain the
parity by reducing the pay scale of Inspectors, CBI/IB from Rs.2000 – 3200/- to
Rs. Rs.1640- 2900/- (pre - revised). But the Govt. did not accept the above
recommendations of the Expert Committee and allowed the enhanced scale of Rs.
6500 – 10,500/- to all inspectors of CBI/IB.
The copy of
the judgment passed in O.A. No.541/94 is annexed here unto and marked as ANNEXURE – 1
And Copy
of O.A.No. 45/2000 by Hon’ble Jabalpur Bench of CAT are annexed herewith as ANNEXURE -2.
7.
That
the 5th Pay Commission considered the demand for revision
of pay scale of Superintendent of Central Excise and Customs from the pre-revised scale of Rs.200O-3500/-to
Rs.2375-3500/- made by the All India Federation of Central Excise and Customs Gazetted Officers but it
was not accepted solely on the ground that it will disturb the horizontal relativities.
The Central 5th Pay Commission was of the
opinion that the Inspectors of CBI/IB as well as the
Inspectors of Central Excise & Customs
should be placed in a common pay scale of Rs.1640-2900/-
as recommended by the 4th Pay Commission. On the
basis of the above observation, the Commission further observed in the matter
of the Superintendent of Central Excise. that the enhancement of the
pay scale of the Superintendent. Grade is
not acceptable on the similar analogy. As the back-ground history relating to
the claim for enhancement of pay scale of Inspector as well as Superintendent of
Central Excise & Customs are having certain common elements for
consideration, the applicants have explained relating to the case of the
Inspectors and consideration of the same by the 5th pay Commission.
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This
is further submitted that the horizontal hierarchical
structure relating to Central Excise & Customs, CBI/IB and the pay scale as
per the 4th Pay Commission
recommendations are extracted here under for ready reference.
Name of the Department Scale
C.B.I. Inspector Rs.1640-2900/-
Dy.S.P. Rs. 2000-3500/-
I.B. Asst. Central Intelligence Officer. Rs.1640-2900/-
Dy. Central Intelligence Officer. Rs. 2000-3500/-
Central Excise & Customs.
Inspector Rs.1640-2900/-
Superintendent Rs.20003500/-
8.
That after implementation of the
recommendations of the 3rd. pay Commission, the Central Govt. fixed
the equal pay scale of Rs. 650-1200/-
for Superintendent of Central Excise & Customs and Dy. Supdt. of Police of
CBI as well as Dy. Central
Intelligence Officer in the IB with-effect
from 01.01.73. The post of Dy.S.P. in the CBI was created in the year, 1963 and since the creation of
the post the pay scales relating to Dy.S.P. in CBI and Supdt. of Central Excise & Customs were provided a common
scale of pay. The above parity was also maintained in the 4th. Pay
Commission having replacement scale of Rs. 2000-3500/-.
9.
That in the OM. No. 14017
/27/75-Estt(D)(pt) dated 7.3.84 issued by the
Ministry of Home Affairs, the criteria for determining analogous
post have been clarified. Keeping in view
the guidelines, it is seen that the Superintendent. of Central Excise &
Customs is analogous post to Dy.S.P. of CBI. The Superintendent of Central
Excise are eligible to join the post of
Dy.S.P. of CBI on deputation and the concerned
Recruitment Rules also prescribe such posting on deputation, considering over
all duties and responsibilities/
qualification and mode of recruitment etc. The 4th.Pay
Commission also fixed equal pay scale of Rs.2000-3500/- for Supdt. of Central Excise & Customs and Dy.S.P. of
CB/ as well as Dy. Central Intelligence officer in IB with effect from 01.01.86.
The
Copy of the above OM dated 07.03.84 is annexed herewith as ANNEXURE- 3.
10.
That without accepting
the recommendation of the Pay Commission, the
Central Govt., on its own increased the pay scale of Dy.S.P. in CBI from existing pay scale of Rs.2000-3500/-to Rs. 2200-4000/- with effect from 01.01.1986 retrospectively vide its
notification dated 8.2.1996 without
recommendations of pay commission and also without any increase in their
responsibilities.
However, the Central Govt. did not revise the pay scale of Supdt.
of Central Excise & Customs
and Dy. Central Intelligence
Officer of IB at par with Dy SP of CBI w.e.f 01.01.1986. After
implementation of the 5th. Pay
Commission recommendations, the Central Govt. fixed
the pay scale of Rs.6500-10,500/- for
Supdt or Central Excise & Customs, but gave the scale of Rs.8000-13,500/- to Dy.S.P. in
CBI as well as Dy. Central
Intelligence Officer in IB with effect from 01.01.96. Not only it, they are also being
paid 25% extra salary per month and also one month extra salary in the
year.
The Notification dated 08.02.1996 enhancing the pay scale of Dy.S.P.in C.B.I. is
annexed-herewith as ANNEXURE
- 4.
11.
That it is respectfully
submitted that CBI Recruitment Rules, 1987 considered the Central Excise and
Customs Department. as a Central Police Organization and the post of Superintendent of Central Excise and
Customs has been treated as analogous
post to the post of Dy.S.P. in CBI and accordingly
Superintendents of Central Excise and Customs
are joining in CBI as Dy.S.P. on deputation
basis. One Shri P. Rosi Reddy, Supdt, Central Excise &
Customs Hyderabad (whose name is appearing at serial
no. 3560 of all India seniority list of Superintendent of Central
Excise & Customs Group-B issued as on 31.12.1992 by
CBEC) joined as Dy.S.P. in CBI on deputation basis as per
the notification and after joining as Dy.S.P. CBI, his pay
was fixed at Rs. 2575/- with effect from 15.2.91 in the
scale of Rs.2200-75-2800-EB-IOO-4000/-.
basis. One Shri P. Rosi Reddy, Supdt, Central Excise &
Customs Hyderabad (whose name is appearing at serial
no. 3560 of all India seniority list of Superintendent of Central
Excise & Customs Group-B issued as on 31.12.1992 by
CBEC) joined as Dy.S.P. in CBI on deputation basis as per
the notification and after joining as Dy.S.P. CBI, his pay
was fixed at Rs. 2575/- with effect from 15.2.91 in the
scale of Rs.2200-75-2800-EB-IOO-4000/-.
The Notification dated 08.03.1991 issued by the CBI Appointing Sri P .Rosi Reddy on deputation is annexed herewith as ANNEXURE - 5.
12.
That as explained above
as per the recommendations of the 4th
pay Commission, the Central Govt. had fixed equal pay scale
of Rs. 2000-3500/- for Superintendent
of Central Excise and Dy.S.P. of CBI
and Dy. Central Intelligence Officer in IB with effect from 01.01.1986.
It is respectfully submitted here that certain
Dy.
S.P. of CBI filed one O.A. before the Hon'ble CAT,
Principal Bench, New Delhi for enhancement of their pay
scale and the Hon'ble CAT passed one interim order and
the Central Govt. by accepting above interlocutory order
enhanced the pay scale of Dy. S.P., CBI from Rs.2000-
3500/- to Rs.2200-4000/-. However, in the final judgment the Hon'ble CAT did not approve such enhancement of pay scale and directed to maintain the pay of Dy.S.P./CBI at Rs.2000-3500/-. After the judgment has been passed by the Hon'ble CAT, the Central Govt., did not follow the observation passed in the judgment and continued to pay the higher scale of pay of Rs.2200-4000/- under its notification dated 08.02.96. Central Govt. did not take any step for maintaining the parity in the pay scale of Supdt. Central Excise and Customs as well as Dy. Central Intelligence Officer/IB and allowed the disruption in the parity resulting in various grievances and agitations by the concerned officers in the Department of Central Excise and Customs as well as IB. After the implementation of the 5th. CPC, the Central Govt. fixed replacement scale of Rs.8000/-Rs. 13,500/- for Dy.S.P. of Police in CBI. However, to retain the parity the scale of pay of Dy. Central Intelligence Officer in IB was fixed in the above higher scale of pay of Rs. 8000-13,500/- but the same scale was not allowed to the Supdt. Central Excise and Customs and they were given replacement scale of pay Rs. 6500-10,500/-.
S.P. of CBI filed one O.A. before the Hon'ble CAT,
Principal Bench, New Delhi for enhancement of their pay
scale and the Hon'ble CAT passed one interim order and
the Central Govt. by accepting above interlocutory order
enhanced the pay scale of Dy. S.P., CBI from Rs.2000-
3500/- to Rs.2200-4000/-. However, in the final judgment the Hon'ble CAT did not approve such enhancement of pay scale and directed to maintain the pay of Dy.S.P./CBI at Rs.2000-3500/-. After the judgment has been passed by the Hon'ble CAT, the Central Govt., did not follow the observation passed in the judgment and continued to pay the higher scale of pay of Rs.2200-4000/- under its notification dated 08.02.96. Central Govt. did not take any step for maintaining the parity in the pay scale of Supdt. Central Excise and Customs as well as Dy. Central Intelligence Officer/IB and allowed the disruption in the parity resulting in various grievances and agitations by the concerned officers in the Department of Central Excise and Customs as well as IB. After the implementation of the 5th. CPC, the Central Govt. fixed replacement scale of Rs.8000/-Rs. 13,500/- for Dy.S.P. of Police in CBI. However, to retain the parity the scale of pay of Dy. Central Intelligence Officer in IB was fixed in the above higher scale of pay of Rs. 8000-13,500/- but the same scale was not allowed to the Supdt. Central Excise and Customs and they were given replacement scale of pay Rs. 6500-10,500/-.
13.
That in the above
background, on the demand of the coordination Committee of Federations in the
Department of Revenue the Respondents constituted a High level committee
consisting of the Chairman, CBEC, Chairman CBDT and Member P & V of both
the Boards to go into the representations and demands of the Group ‘B’ and ‘C’
(executive) staff of Customs, Central Excise and Income Tax Services relating
to their pay scale disparity and other grievances arising out of the recommendations
of the 5th Central Pay Commission and make appropriate
recommendations to the Government.
The HPC after going into all
the aspects of the matter
came to the conclusion that the Dy. Central Intelligence Officer in IB,
Dy.S.P. in CBI are comparable to the post of Supdt,
Central Excise and Customs and they have recommended to retain the parity as was existing earlier.
The Report
of the HPC is annexed herewith as ANNEXURE
- 6
14.
That it is respectfully
submitted here that the HPC came to the conclusion that the post of Supdt.,
Central Excise is comparable with the post of Dy.S.P. in CBI and Dy. Intelligence Officer
in IB but a lower scale of Rs.7500-12,000/-
was recommended for the Supdt., Central Excise
and Customs on the ground that
'Customs Appraisers' are recruited through the
same Civil Service Examination through which Group-A, IC &CES officers are recruited and giving pay scale of Rs.8000-13,500/- to them along with the Supdt., Central Excise and Customs will create difficulty from the operational point of view and in the matter of fitting them into
the overall structure of
the department.
This
is respectfully submitted here in the above context
that the provisions of direct recruitment of Appraisers
in the department of Central Excise and Customs have been abolished
by the Respondents in the year 2002 and
intimated under C.No. 1(10) (4) 4 / Law/ BBSR-I /2002/8193A dated 17.4.03 i.e
after submission of the HPC report.
This
is further submitted here that the Group-A IPS officers and DSP/CBI are also recruited through the same Civil Service
Examination but the above method of recruitment was not treated as any
impediment for giving higher scale of pay of Rs.8000-13,500/- to the DSP/CBI and Deputy
Central Intelligence Officer / I.B.. This is further submitted here-that as the direct recruitment of Appraiser
has been abolished, there is no difficulty in retaining the parity or giving
pay scale of Rs.8000-13,500/- to the Supdt. of Central Excise and Customs and the overall
spirit of the HPC is also to retain such parity.
True
Copy of letter dated 17.04.03 communicated by the department is annexed herewith as ANNEXURE-7.
15.
That in the circumstances,
the Petitioners approached the Hon'ble Central Administrative
Tribunal, Cuttack by filing O.A. No. 373/03 to direct the respondents to grant pay
scale of Rs. 8,000 – 13,500/- to the
cadre of Superintendent of Central Excise and Customs with effect, from 1.1.96 and the pay scales of
Rs. 10000-15200/- to those Superintendent, who have been awarded with
the 2nd. Financial up gradation under ACP scheme with effect from 9.8.99 alongwith prayer for other
reliefs. Although the Respondents filed their counter and contested the
matter on merits, during the pendency of the
O.A. granted the higher scale of pay of Rs.7500-12000/- with effect from 21.04.2004 by issuing the office
memorandum F.No.6/37/98-IC dated 21.04.04.
True
copy of the O.M. dated 21.04.2004 is annexed herewith as ANNEXURE - 8.
16.
That the above upgradation
was allowed as per the recommendations of the HPC which considered
all other factors like the entitlement of the
Superintendent of Central Excise and Customs to retain their parity with the Dy.S.P., C.B.I. and
Central Intelligence Officer of IB.
But the prayer of the applicants to give the pay scale of Rs.8000-13,500/-
remained un-adjudicated in the facts and circumstances of the case. The
applicants filed a memo for withdrawal of the O.A. to settle the grievances
with the department and liberty was granted to approach
the Hon’ble Tribunal again if Petitioners feel aggrieved by the action of the respondents.
17.
That in the circumstances
Petitioners submitted a representation dated 27.04.2005
to the Opposite Party praying for enhancement of pay scales of Superintendent of Central Excise to Rs.8000-13,500/- with
effect from 1.1.96 raising several grounds.
The
copy of the order passed in O.A. No. 373/03 dated
19.01.2005 is annexed as ANNEXURE – 9.
And
the copy of the representation dated 27.04.2005 is annexed herewith as ANNEXURE - 10.
18.
That earlier
O.A. No. 181/06 was filed to direct the respondents to grant the pay
scale of Rs. 8000-13500/-to the cadre of the Supdt. Central Excise and
Customs w.e.f.
1.1.96 and the pay scale of Rs. 10,000-15,200/- to those Supdt. who have been awarded 2nd
Financial up gradation under A.C.P. Scheme w.e.f. 09.08.99 along with other reliefs. The departmental authorities also filed the Counter in
the above case. After hearing the
parties the above O.A. was disposed off on 25.1.2010. The Hon'ble Tribunal
without going through the points raised in the O.A. directed the Respondent
No.3 to consider and dispose of the representation under annexure – A/10
by March 2010 and communicate the result
thereof accordingly.
The copy
order dated 25.01.2010 is annexed herewith
as ANNEXURE - 11.
19.
That without answering
the points raised in the O.A. or the representations made in this regard, the
Respondents disposed off the representation by rejecting the claim of the Petitioners by issuing order dated 06.10.2010.
20.
That the Committee
constituted to look into the representation and
demands of the Group-B and Group -C
of executive staff of Customs, Central Excise and Income Tax service relating to their pay scale disparity has
specifically observed in its report that
the job contents and nature of duties
of the post of Superintendent of Central
Excise and Customs are similar to the
post of Chief Enforcement Officer of Enforcement Directorate. Superintendent
of NCB, UT Civil and Police Services
(DANICS and DANIPS and NCT of Delhi) Dy.
Central Intelligence Officer in IB and DSP in CBI are having similar Job Contents and nature of duties are comparable with the post of Superintendent of Central
Excise & Customs. Despite such recommendation the Respondent enhanced the
pay scale of Chief Enforcement Officers of ED from 7500-12000 to 8000-13500/-
w.e.f. 4.10.2005 vide Order F.No. 1612612004-Ad.IC dated 4.10.2005 without recommendations of pay
commission. Not only it, they are also being paid 25% extra salary per
month again without the recommendations of pay commission.
This is further submitted
here that 6th Central Pay Commission
in its report Para-7.15.24 has specifically
stated as follows:
The posts
of Asst. Enforcement Officer and Chief Enforcement
Officer have traditionally been at par with the posts of Inspector &
Superintendent analogous posts in CBDT and CBEC. Subsequent to up gradation of posts of Inspectors ITOs/ analogous posts in CBDT and CBEC, the Govt.
also upgraded the posts of Enforcement Directorate, Since the parity between
these posts is well established the commission recommends that the same should be maintained in future.
Moreover, the 6th
Central Pay Commission has also recommended
to maintain the parity between the headquarters organization and the field
officers vide chapter
3.1.
21.
That unfortunately
violating the settled principle of law and
the recommendations of the 6th Central Pay Commission, the grade pay of Superintendent of Central Excise and Customs has been fixed to Rs. 4800- in PB-2 and grade pay of Rs. 5400/- in PB - 2 for those Supdts who have completed more than 4 years w.e.f. 01.01.2006.
the recommendations of the 6th Central Pay Commission, the grade pay of Superintendent of Central Excise and Customs has been fixed to Rs. 4800- in PB-2 and grade pay of Rs. 5400/- in PB - 2 for those Supdts who have completed more than 4 years w.e.f. 01.01.2006.
The grade
pay of Rs 5400/- in PB-2 has been fixed w.e.f. 01,01.2006 in case of Chief Enforcement officer
in Enforcement Directorate. The Grade
Pay of GP 5400 in PB-3 has been fixed to Dy. Central Intelligence Officer in IB and DSP in CBI, w.e.f. 01.01.2006.
The
competent authority in the Govt. of India (Department of Expenditure) has,
however, approved an initial grade pay of Rs. 5400/- in PB2 for Central Excise
Superintendents on 21.11.14 considering
para 7.15.24 of the report of 6th CPC but it was communicated finally to
CBEC vide UO No. 6/37/98-IC Dt. 24.11.14 to send the case to 7th CPC
by the Under Secretary level officer. It is really unfortunate and totally
unjustified that the matter duly recommended by the 6th CPC and duly
accepted by the competent authority was again asked to be sent to 7th
CPC. It was, however, neither sent to the 7th CPC nor implemented
till date. Even if it was sent to the 7th CPC and was again
recommended, who knows that it would have not again been asked to be sent to
the next CPC/s under an unending process.
The above action of the Govt. is not only
discriminatory but the same has resulted in grave injustice to the cadre of Superintendent
of Central Excise & Customs. It is highly
unjustified to create disparity between the 2 sets of employees whose job
contents and nature of duties are similar as held by the pay
commission as well as the High-Power Committee confuted by the Govt. itself
and the above action is also unsustainable because the same is violative of the guidelines issued in
the matter of compulsory arbitration by the Department of Personnel and
Training Govt, of India. It is also worth to
mention that in S. Balakrishnan
& Ors. (WP 11535/2014 decided by the High Court of Madras on
16.10.14), the High Court decided that the Grade Pay of Rs. 5400/- in PB-3 is not a
higher Grade Pay than the Grade Pay of Rs.5400/- in PB-2 and the immediate next
higher Grade Pay to the Grade Pay of Rs.5400/- is Rs.6600/-. The SLP No.15396/2015 filed by the UOI in the Supreme
Court against the above judgement was dismissed on 31.08.15. Thus, the
judgement dated 16.10.14 of the Madras High Court has attained finality.
22. That it appears
while rejecting the grievances of the applicant the Respondents have not
applied its mind relating to the various factors as narrated above and the grounds raised in the
representation annexure- A/11 has also not been answered while
passing the impugned order although the Hon'ble CAT has directed to consider the matter judiciously.
That in the circumstances, Petitioners were constrained
to file the aforesaid Original Application in the Central Administrative
Tribunal, Cuttack Bench, Cuttack praying for quashing the order date 06.10.2010
of the Opposite Parties and to direct to allow the scale of pay of Rs. 8,000 –
13,500/- to Superintendent Central Excise w.e.f.01.01.96 at par with DSP of CBI
/CB and the pay scale of Rs. 10,000 – 325 – Rs. 15,200 to those Superintendents
who had got financial up gradation under ACP Scheme alongwith other reliefs.
True copy of the said Original Application filed in O.A.
No 624 of 2011 is annexed here unto and marked as ANNEXURE – 13.
Since all the annexures of the O.A. is already annexed as
Annexures 1 to 13 of this petition, Petitioners filed annexure – 14 without
annexures.
23. That the
Hon’ble Tribunal was pleased to admit the Original Application and directed
noticed to Opposite Parties and the Opposite Parties filed their Counter
affidavit denying the claim of the Petitioners.
True Copy of the Counter affidavit by the Respondents
before the Tribunal is annexed and hereunto marked as ANNEXURE – 14 SERIES.
24. That as
there were misrepresentation of facts and misleading submissions made by the
Opposite Parties in their counter affidavit, Petitioners were compelled to file
a rejoinder to the said counter affidavit.
True Copy of the said rejoinder with annexures is annexed
as ANNEXURE – 15 SERIES.
25. That after
hearing the Parties by judgment dated 06.12.2017 the Learned Tribunal dismissed
the said Original Application due to erroneous application of fact and law and
misplaced reliance on some judicial pronouncements and by committing serious
illegality while passing the judgment.
True
Copy of the judgment dated 06.12.2017 of the CAT, Cuttack Bench is annexed as ANNEXURE – 16.
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.
26. That in the
circumstances, Petitioners are constrained to file this writ petition under
Article 226 and 227 of the Constitution of India for quashing the impugned
Judgment dated 06.12.2017 of Tribunal in O.A. 624 of 2011 on the following
amongst other grounds;
GROUNDS
A. For
that, the judgment dated 06.12.2017 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 scale of pay claimed
by the Superintendent on the ground of disparity cannot be negatived only
by stating that the above scale is admissible to the Asst. Commissioner in the hierarchy. Further,
when the high power committee recommended for
a lower scale to the Supdt. of
Central Excise i.e. Rs. 7500 - 12000/- to keep intact a horizontal and
vertical structure in the department, it is not known as to why the above
scale cannot be made applicable to
the Supdt. of Central Excise and Customs w.e.f. 01.01.1996 i.e. the date when
the disparity arose.
C.
For that the Respondent while passing the
impugned order has only relied upon in piecemeal way a portion of the 6th
Central Pay Commission Report so far, it's introspective Operation is
concerned. It has not kept in mind the detail history of the case as narrated in the O.A. and the order dated 21.04.2004 under annexure-A/9 which has been passed giving higher pay scale of Rs.
7,500-12,000/- to the Supdt. Central Excise
& Customs. the Respondents are not alive to the notifications, the judgment
passed by the different Benches of the CAT, undertaking given specifically by
the respondents before the CAT Mumbai
Bench, the report of the high power committee who recommended specifically to remove the disparity after examining to nature of duties, responsibility, and job Contents of two analogous
posts and illegality has been committed in not giving appropriate scale of pay
as claimed by the Applicants w.e.f. 01.01.1996.
D.
For that although higher
scale of pay of Rs. 7500-12000/- was given to the
Superintendent of Central
Excise and Customs by issuing the office
memorandum dated 21.4.04, no reason has been assigned by the respondents
as to why the higher scale of pay Rs.8000-13,500/- was NOT
given with effect from 01.01.96 i.e. from the date of disruption of parity between two sets of similarly placed
employees whose nature of duties, responsibility and the recruitment procedure
are comparable.
E.
For that law has been well
settled by the Hon'ble Supreme Court as
well as by different Benches of the Hon'ble High Court and the Hon'ble CAT that
where
the appropriate authorities came to the conclusion that
the higher scale of pay has to be granted to remove the
disparity then there is no reason for allowing two different
dates to give effect and the higher scale of pay should be given from the same date as in the case of categories of employees relating to which it is proposed to remove the disparity.
the appropriate authorities came to the conclusion that
the higher scale of pay has to be granted to remove the
disparity then there is no reason for allowing two different
dates to give effect and the higher scale of pay should be given from the same date as in the case of categories of employees relating to which it is proposed to remove the disparity.
F.
For that it is submitted
here that as the provisions of direct recruitment
of Appraisers has been abolished as communicated by the Respondents in CNo.(10)(4)/Law/BBSR-I/2002/8193A dated 17.4.03 i.e. after submission of the report of the HPC, there is no
difficulty in implementing equal pay scale of Rs.8000-13,500/-
to the Supdt. of Central Excise and Customs as Principally agreed by the HPC
and the Central Govt. after abolition of the
direct recruitment, procedure relating to Appraisers, have categorically
admitted before the Hon'ble CAT, Mumbai
Bench that they will examine the issues
and take up the matter again independently but no action has been taken so far by the respondents for allowing the equal scale of pay of Rs.8OOO-13,500/- as yet.
G.
For that 3rd, 4th,5th
and 6th Central PAY Commissions had recommended to award the pay
scale of Dy. SP/CBI and Chief Enforcement Officer of the Enforcement Directorate
to the post of Superintendent of Central Excise. The Respondents had accepted
all the recommendations of 3rd, 4th,5th and 6th
Central Pay Commissions but arbitrarily could not grant the same pay scale of
Dy SP/CBI/ Chief Enforcement Officer to the post of Superintendent of Central
Excise w.e.f 01.01.1986/ 01.01.1996/01.01.2006 reasons best known to them
without any logic, rationale and therefore the Respondents had shown hostile
discrimination between the two sets of employees having been treated alike by
the 3rd,4th,5th and 6th Central pay
Commissions.
H.
For that the level of responsibility, the
duties, qualification, made of recruitment/promotion, volume/quality of work
and reliability of the posts of Superintendent of Central Excise and Dy. SP/CBI/
Chief Enforcement Officer of ED are same under the provisions of OM dated
07.03.1984 (annexure A/3) for which the Superintendents of Central Excise are
being considered to join in the post of Dy. SP/CBI/ Chief Enforcement Officer
in ED on deputation basis in accordance
with the Dy. SP/CBI, Recruitment Rules/ Chief Enforcement Officer( now
redesignated as AD) Recruitment Rules framed under the provisions of Article
309 of Constitution of India.
I.
For that the Respondents had accepted the
High Power Committee report prospectively w.e.f. 21.04.2004 without stating any
reason as to why the pay scale should not be effective on a date prior to
01.01.1996 as per recommendations of High Power Committee Report to awarded the
pre – revised scale of pay operative during 01.01.86 to 31.12.1995 (during the
operation of 4th Central Pay Commission). The Hon’ble CAT, Mumbai
Bench in OA No 86/2008 (Annexure – R/1) had interalia held that in the absence
of any material to justify different date of implementation, rejection of the
case of the Applicants for uniform date of implementation, rejection of the
case of the Applicants for uniform date of implementation cannot be held to be legally
valid.
J.
For that Respondents vide order dated
04.10.2005 (Annexure – R/5) had upgraded the pay scale of 8000 – 13500 at par
with the pay scale of Dy. SP/CBI, arbitrary without upgrading the pay scale of
Superintendents of Central Excise at par with the post of Dy. SP/CBI and Chief
Enforcement Officer of Enforcement Directorate violating the recommendations of
High Power Committee as contemplated vide paragraph 6 to the report (Annexure –
A/7).
K.
That the
feeder cadre of Inspector in CBEC/CBIC and CBI was placed at par in the matter
of pay scale on 21.04.04 but the promotional cadre of Central Excise/CGST
Superintendent is still awaited to be placed at par with the DSP of CBI
(promotional cadre for Inspector in CBI).
L. That
the responsibilities of Central Excise/CGST Superintendents are on regular
increase whereas there is no increase in the responsibilities of Dy. SP of CBI.
For example, new higher responsibilities of judicial nature were conferred upon Central
Excise Superintendents vide Circular No. 922/12/
2010-CX issued
vide F. No. 208/2/2009-CX-6 Dt. 18.05.10 and 130/12/2010–ST
issued
vide F. No. 137/68/2010-CX. 4 Dt. 20.05.10. Their responsibilities were again
increased 10 times by enhancing the adjudication limit to Rs. 10 lac vide
circular No. 1049/37/2016-CX issued vide F. No. 267/40/2016-CX.8 Dt. 29.09.16
of CBEC. No need to say that increased/higher responsibilities are always
directly linked with the increased/higher pay scales. But very unfortunately,
there is no increase in the pay scale of Central Excise Superintendents despite
of the responsibilities of these officers being on regular increase even in
every Budget of Govt. of India. Their adjudicating responsibilities have
further been increased to Rs. 20 lac vide Circular No. 31/05/2018 – GST under
GST issued vide F. No. 349/75/2017-GST Dt. 09.02.18. That the Central Excise/CGST Superintendents have also been conferred with new higher
technical/scientific responsibilities of ACES since 2008 and now GSTN under
GST. The claim of these
Superintendents becomes even stronger on account of recording statements like a
Magistrate under Section 14 of Central Excise Act & Section 108
of Customs Act having validity even before the Hon’ble Supreme Court. Not only
it, the Adjudication Orders are also being prepared by them for Commissioner
level officers. No need to submit that none of
their counterparts including the Dy. SP of CBI has been conferred with such
responsibilities.
M.
That despite
of the admission by Expenditure Department Under RTI vide OM No.
1148/Dir(A)/2008 Dt. 08.12.08 that the pay scale of Central Excise
Superintendent was enhanced on 21.04.04 to grant them parity with DSP of
CBI/DCIO of IB (analogous counterparts of Central Excise Superintendent),
Central Excise Superintendent was not given the said parity and was granted
merely a lower pay scale of Rs. 7500-12000/- w.e.f. 21.04.04 instead of Rs.
8000-13500/- or equivalent (pay scale of DSP of CBI/DCIO of IB).
N.
That the Central Excise personnel are also
deployed on International Airports, International Sea Ports and International
borders side by side with IB, CBI, Army, BSF, CRPF and ITBP etc. These
personnel have suffered heavy casualties while dealing with trans-border
criminals and countering with the dreaded smugglers. Also as per the OM issued vide F. No.
8/B/90/HRD (HRM)/2011 (Part-I)/4853 Dt. 21.10.14 and No.C.30013/11/2011-Ad.IV.A
Dt.02.08.13 of CBEC/the Govt. of India,
the Central Excise Superintendents perform their duties in the nature and style
of ‘Military’ and ‘Navy’ being uniformed officers bearing “Ashoka Emblem”.
Thus, Central Excise/CGST Superintendents are required to be placed under a pay
scale even higher than the DSP of CBI on the lines of Military and Navy.
O.
That the Special Police Establishment (Executive Staff)
Recruitment Rules and CBI
Recruitment Rules, 1987 consider department of
Central Excise as a Police Organisation.
Section 21 of Central Excise Act and
Section 53 of NDPS Act also confer powers of Officer-in-Charge
of Police Station on Central Excise officers.
P.
That the plea
by Central Excise Superintendents for grant of GP of Rs. 5400/- in PB3 has been
turned down stating that it is the group ‘A’ entry scale belonging to the
promotional post of Asstt. Commissioner, to which Superintendent is a feeder
post. That being the case, the feeder post of Assistant and promotional post of
Section Officer were placed in the same pay scale in CSS once upon a time just
before the implementation of 6th CPC report. Likewise, feeder and
promotional posts were being placed in the same pay scale in Audit and Accounts
services. Also Group ‘B’ officers in the
Sate Governments and Group ‘A’ All India Service Officers are recruited in the
same grade pay of Rs. 5400/- in PB3 and get next promotion to the same post in
grade pay of Rs. 6600/-. Further, it is also a fact that the pay of
any Assistant Commissioner (direct) will always be less than a Superintendent
on account of acute stagnation at Inspector and Superintendent levels. Accordingly,
there should not be any problem to place the Central Excise Superintendent in
the Grade Pay of Rs. 5400/- in PB3 (Level 10). This problem may, however, also
be solved by promoting the Superintendent directly to STS (Level 11) post like
most of the other counterparts or even making the group ‘A’ entry into Grade
Pay of Rs. 6600/- (Level 11).
Q.
That
it is also worth to submit that only a negligible amount of merely around 80
paise is being incurred to collect Rs. 100/- by these officers despite of being
faced the worst pay packages and also the worst career prospects. No need to
say that the revenue collection and efficiency in the indirect tax
administration would increase multifold, if these officers are made
job-satisfied regarding their pay matters and career prospects.
R.
That the CBEC/CBIC has also recommended for
the grant of a Grade Pay of Rs. 5400/- in PB3 (Level-10) for the Central Excise
Superintendents at par with the DSP of CBI and also to give them next promotion
in STS vide OM F. No.A-26017/154//2015-Ad.IIA Dt. 22.02.16 . But the matter is yet to reach the
finality.
S. 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.
T. 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.
U. 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.
V. 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.
W. For
that, in these circumstances the Judgment dated. 06.12.2017 of the Hon’ble Central
Administrative Tribunal, Cuttack Bench in O.A No. 624 of 2011 is bad in law and
liable to be set aside.
PRAYER
It is therefore humbly prayed that the facts and
circumstances stated above and interest of justice, this Hon’ble Court be
graciously pleased to admit the writ petition and after hearing the parties be
pleased to issue appropriate writ/directions/declarations;
i.
Quashing the judgment dated 06.12.2017 of the
Central Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No 624 of 2011.
ii.
Quashing the order dated 06.10.2010 of Govt.
of India, Ministry of Finance, Revenue Department (CBEC) rejecting the claim of
the petitioners,
iii.
Directing the
opposite parties to grant the pay scale of Rs. 8000-275-13500/- to the cadre of Superintendent of Central
Excise Customs w.e.f, 01.01,1996 alongwith all perks & amenities etc. as
being granted to the Dy.SP of CBI including 25% extra salary in month as well
as one month extra salary in the year and the pay scale of Rs. 10,000-325-15200 to those Superintendents who have
been awarded 2nd Financial
upgradation under ACP Scheme w.e.f. 09.08.1999
and consequently the corresponding grade pay scale/be allowed after 6th Central Pay Commission recommendations.
iv.
Declaring that the disparity in the pay scale is
required to be removed from the date when such disparity arose and direction be given to the respondents to effect the appropriate higher scale
of pay to the Superintendent of Central
Excise and Customs retrospectively i.e. from 01.01.1986.
v.
Declaring that Apart from the above scale consequent to 6th Central Pay Commission the Superintendent of Central
Excise and Customs may be given grade
pay of Rs 5400 in PB-3 w.e.f. 1.01.06 and grade pay Rs. 6600 in PB-3 w.e.f. 01.01.06 to those Superintendent of
Central Excise and Customs who have completed 4 years of Service in the grade and grade pay of Rs. 7600 in PB-3 w.e.f. 01.01.06 to those Superintendent of
Central Excise & Customs who have
been awarded with 2nd Financial upgradation in ACP Scheme and further a grade pay of Rs. 8700 to such
officers on completion of 2 years.
And pass any
other order/orders as the Hon’ble Court may deem fit and proper.
And for this act of kindness, the
petitioner shall, as in duty bound, ever 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 & 5. 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 passed in O.A. No.541/94
3. ANNEXURE – 2
Copy of O.A.No. 45/2000 by
Hon’ble Jabalpur
Bench of CAT
4. ANNEXURE – 3
The
Copy of the above OM dated 07.03.84
5. ANNEXURE – 4
The Notification dated 08.02.1996
enhancing
the pay scale of Dy.S.P.in C.B.I.
6. ANNEXURE – 5
The
Notification dated 08.03.1991
issued by the CBI.
7. ANNEXURE – 6
The Report of the HPC
8. ANNEXURE – 7
True Copy of letter dated
17.04.03
9. ANNEXURE – 8
True copy of the O.M. dated 21.04.2004
10. ANNEXURE – 9
The copy of the order passed in
O.A. No. 373/03 dated
19.01.2005
11. ANNEXURE – 10
The copy of the representation dated
27.04.2005
12. ANNEXURE – 11
The
copy order dated 25.01.2010
13. ANNEXURE – 12
The copy of the above order dated 06.10.2010
14. ANNEXURE – 13
True
copy of the Original Application filed in
O.A.
No 624 of 2011
15. ANNEXURE – 14 SERIES
True
Copy of the Counter affidavit by the
Respondents
before the Tribunal
16. ANNEXURE – 15 SERIES
True
Copy of the rejoinder
17. ANNEXURE – 16
True
Copy of the judgment dated 06.12.2017
of
the CAT, Cuttack Bench
VAKALATNAMA
Cuttack ADVOCATE
Date:
FOR THE PETITIONER
