ALL INDIA ASSOCIATION OF CENTRAL EXCISE
GAZETTED EXECUTIVE
OFFICERS
President:
Address for communication:
Secretary General:
A.
Venkatesh
240, Razapur, Ghaziabad-201001 (U.P.)
Ravi Malik
Mob.7780255361
mail Id:ravimalik_sweet@yahoo.com,
Site: cengoindia.blogspot.in Mob.9868816290
Vice Presidents: Apurba
Roy, P. C. Jha (East); A. K. Meena, Somnath Chakrabarty (west); Ashish
Vajpayee, Ravi Joshi (North); B. Pavan K. Reddy, M. Jegannathan (South); K.V.
Sriniwas, T. J. Manojuman (Central) Joint Secretaries: Ajay Kumar, R. N.
Mahapatra (East); B. S. Meena, Sanjeev Sahai (West); Harpal Singh, Sanjay
Srivastava (North); M. Nagraju, P. Sravan Kumar (South); Anand Kishore,
Ashutosh Nivsarkar (Central)
Office Secretary: C.
S. Sharma T reasuer: N. R. Manda Organising Secretary: Soumen
Bhattachariya
(Recognised by G.O.I., Min. of Fin. vide letter F.No.
B. 12017/10/2006-Ad.IV A Dt.21.01.08)
Ref. No. 282/AIB/G/18
Dt. 08.11.18
To,
The Finance
Secretary,
North Block,
New Delhi.
Sub:
Implementation of the Subramanium case.
Sir,
Kindly
refer to the letter F. No. A-23011/05/2009-Ad.IIA Dt. 31.10.18 of the CBIC and
also Ref. No. 113/AIB/G/17 Dt. 28.09.17, 120/AIB/G/17 Dt. 11.10.17, 121/AIB/G/17
Dt. 11.10.17, 171/AIB/G/17 Dt. 13.12.17, 100/AIB/G/17 Dt. 05.04.18, 229/AIB/A/18
Dt. 24.08.18, 262/AIB/G/18 Dt. 05.10.18 etc. of the Association addressed to
CBIC.
2. With due
regards, it is to submit that the verdict given by the Hon’ble Supreme Court in
Civil Appeal No. 8883 of 2011 has been implemented “in personam” instead “in
rem” despite of the verdict given by the Hon’ble Apex Court in SLP No.
77457/2017 as under-
“Once the
question, in principle, has been settled, it is only appropriate on the part of
the Government of India to issue a circular so that it will save the time of
the court and the Administrative Departments apart from avoiding unnecessary
and avoidable expenditure.” The Hon’ble Court further directed the Government
of India to immediately look into the matter and issue appropriate orders so that
people need not unnecessarily travel either to the Tribunal or the High Court
or the Supreme Court.
3. Not only
the SLP/Civil Appeal filed by the CBIC in the Subramanium case was dismissed on
10.10.17 but the review petition in it was also dismissed on 23.08.18 by the
Hon’ble Supreme Court. Thus, the verdict should have been implemented in rem
giving the due benefit to all equally placed officers without forcing all of
them to go to the legal court against the government. No need also to say that
the verdict given by the Hon’ble Apex Court is always to be treated as the law
of the land giving benefit to all without any discrimination.
4. The issue
involved in this case is the grant of the time scale on completion of 4 years
of service after getting ACP/MACP upgradation (if not promoted to the post of
Superintendent) to our officers after joining as Inspector, whether direct
recruit or promotee.
5.
Your kind attention is also invited to the counter-affidavit of the CBIC
submitted in the OA No. 1944/2016 filed by the Association for the general implementation
of the Subramanium issue to give its benefit to all equally placed officers. In
the said counter-affidavit, the CBIC has mentioned that the reason of not
implementing the issue for all equally placed officers is the pendency of the
case in the Apex Court. No need to submit that it would be the contempt of the
Hon’ble CAT as per the counter-affidavit of the CBIC now as the Subramanium
verdict has not been implemented in rem. Not only it, the letter F. No. A-23011/05/2009-Ad.IIA Dt.
31.10.18 of the CBIC is of contemptuous in nature to the Hon’ble Supreme Court
in r/o the verdict given SLP No. 77457/2017.
6.
By the finalization of the issue at the level of the Apex Court, it has also
now been established that the ACP/MACP upgradation and time scale are
altogether different from each other and can no way be off-set with each other.
So, the grant of the time scale can never be treated as one MACP upgradation.
7.
Further, your kind attention is invited to the order Dt. 27.09.18 of the
Hon’ble High Court of Delhi in W.P.(C) 11277/2016 taking serious note against
the CBIC letter Dt. 05.09.07. This letter says, “in cases where the Court
orders are adverse to the interest of the department/Government, such orders
should not be implemented without clearance of the Board”. The Hon’ble High
Court took strong exception to this letter and was prima facie of the opinion
that this letter invites contempt of Court. However, at the request of the ASG,
the Hon’ble Court refrained from passing further orders and offered an
opportunity to the CBIC to withdraw the letter. Thus, it is very clear that any government department is never above
the Hon’ble Court.
8.
Your kind attention is also invited to the orders of Hon'ble Supreme Court in
P.K. & Ors. V. K. Kapoor & Anr. JT 2007 (12) 439, Inderpal Singh Yadav &
Ors., State of Maharashtra Vs. Tukaram Trymbak Choudhary by order dated
20.02.2007, Dt. 17.10.14 in
the Civil Appeal No. 9849 of 2014 in the matter of State of Uttar Pradesh &
Ors Vs. Arvind Kumar Srivastava & Ors etc. mandating to give the
benefit of court verdict to all equally placed persons. The Hon'ble Supreme Court in the judgment Dt.
17.10.14 in the Civil Appeal No. 9849 of 2014 in the matter of State of Uttar
Pradesh & Ors Vs. Arvind Kumar Srivastava & Ors held as under:
“Normal rule is that when a particular set of
employees is given relief by the Court, all other identically situated persons
need to be treated alike by extending that benefit. Not doing so would amount
to discrimination and would be violative of Article 14 of the Constitution of
India. This principle needs to be applied in service matters more
emphatically as the service jurisprudence evolved by this Court from time to
time postulates that all similarly situated persons should be treated similarly.
Therefore, the normal rule would be that merely because other similarly
situated persons did not approach the Court earlier, they are not to be treated
differently.”
9.
In view of the above, it is again requested to kindly implement the Subramanium
verdict in rem giving benefit to all equally placed officers at an early date
and also not to offset the grant of time scale with the MACP upgradation
without forcing all of them to go to the legal court. It will save the time,
energy and money of the government as well as the concerned officers.
Thanking
you,
Yours sincerely,
(RAVI MALIK),
Secretary General.
Coy with the request for necessary action to:
1) The Secretary, Department of Expenditure, North
Block, New Delhi.
2) The Chairman, CBIC, North Block, New Delhi.
3) The Member (Admn), CBIC, North Block, New Delhi.
