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
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 Treasuer: 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. 31/AIB/S/19
Dt. 04.02.19
To,
Sh. Pranab Kumar Das,
Chairman, CBIC,
North Block, New Delhi.
Sub: Implementation of the
Subramanium case.
Sir,
Kindly refer to the various
representations of the Association on the subject matter Ref. No.
330/AIB/S/18 Dt. 13.12.18 including Ref. No. 330/AIB/S/18 Dt. 13.12.18.
2. Your kind attention is again invited to the verdict given on 06.12.18
in OA No. 1318/2018 by the Hon’ble CAT, Allahabad holding that the applicants are entitled to be placed and
had their pay
fixed in the Non-Functional Grade (NFG) Pay Scale of Rs. 9300-34800 in Pay
Band-II with the Grade Pay of Rs.
5400/- with all consequential
benefits with
effect from the dates that they had completed four years of service in the
Grade Pay of Rs. 4800/- (i.e., pay scale of the Superintendent) alongwith the interest at such rates as
might be found just and reasonable in the facts and circumstances of the
case.
3. Further, it is to submit with due regards
that the aforesaid OA was preferred by the
applicants seeking extension of the benefits of the Judgment given by the Hon’ble Madras High Court in
the M. Subramaniam case as upheld and affirmed
by the Hon’ble Supreme Court. It was also categorically
stated in the para
4.20 of the OA that several of the applicants had approached the respondents seeking
extension of the benefits of the judgement of the Madras High Court to them
since their claim stood squarely covered by those decisions but no response had
been received by them till date.
4. Further, it was also
specifically submitted by the applicants in the para 4.22 of the OA that-
“The applicants have been advised to submit,
most humbly, that, as per the dictum of law, as it stands today, all persons
belonging to the same class are equally entitled to the benefits of a judicial
verdict if it relates generally to that class, irrespective of whether some of
the members of that class had been parties before the court or not. In this
view of the matter, once the benefits under the Subramaniam Judgement have been extended to some, they
were liable to be extended to the present applicants as well since there is
absolutely nothing to distinguish their claim from that of Sri M. Subramaniam, and the failure to do so
on the part of the respondents amounts to subjecting the present applicants to
hostile discrimination in violation of the mandate of law repeatedly and
clearly enunciated by the Hon’ble
Supreme Court in a catena of cases.”
5. It is also worth to mention that, vide para 7 of the
captioned Judgment, Hon’ble CAT has pointedly observed that pay fixation matters like the one it was
considering, were all governed by uniform policies of the Government and,
therefore, judgments on such matters, by their very nature, were always
judgments-in-rem and cannot be judgments-in-personam, unless so specified in
the order. This observation of the Hon’ble Tribunal is a clear and telling negation
of the stand taken by the department in the Compliance Order dated
31.10.18 issued for implementing the order
of the Madras High Court, wherein it was stated that it had been decided to
implement the same in the case of M. Subramaniam in personam.
6. Having observed as above,
the Hon’ble CAT has been pleased to order that the respondents would
ensure that the benefits of the judgment referred above are given to all the persons who are
entitled to the same whether they are retired or are in service and that this
exercise is to be completed within a month from the date of receipt
of certified copy of the order. It is
also worth to submit that one month period has already expired.
7. Your kind attention is also invited to the
letter F. No. A-23011/62/2016-Ad.IIA Dt. 06.12.18 of the CBIC seeking
information relating to the expenditure involved in the issue. In this regard,
it is to submit that no Hon’ble Court/CAT has put any condition for the
approval of the expenditure from the Department of Expenditure to implement the issue. So, the verdict
is required to be implemented without seeking the information about the involvement of the
Expenditure.
8. In W.P.(C) 11277/2016, Delhi High Court took 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 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
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 including Expenditure is never above the Hon’ble Court and it is
contemptuous not to follow the court orders and also no clearance from any
government department including the Expenditure is required to be sought to
implement the issue.
9. Needless also to submit that any verdict
settled at the level of the Hon’ble apex Court is to be treated as the law of
the land and is to be implemented without any discrimination to anybody. It is
unfortunate that only applicants are being given the benefit of the verdict,
that’s too only after being forced to file the contempt petition in the Hon’ble
Court. The result of the discriminatory implementation of the verdict is that
even seniors are forced to get less pay than their juniors. Despite of the
Board letter F.No.A-60011/24/2015-Ad.IIB Dt. 21.06.16 and F.No.C-18012/6/2013-Ad.IIB
Dt.09.05.16 to minimise the court cases in service matters by redressing the
grievances represented by the employees, the officers are forced to file court
cases and contempt petitions on various issues.
10. Your kind attention is also invited to the various verdicts given
by the Hon'ble Supreme Court
for in-rem implementation including the orders Dt. 17.10.14 given in the Civil Appeal No. 9849 of 2014 in
the matter of State of Uttar Pradesh & Ors Vs. Arvind Kumar Srivastava
& Ors 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.”
11. In view of the above, it is requested to
implement the verdict in rem at an early date giving benefit to all affected
officers, whether petitioners/non-petitioners or serving/retired without
seeking the clearance
for the expenditure.
Thanking You,
Yours sincerely,
(RAVI
MALIK),
Secretary General.
Copy with the request for
necessary action to:
1. The
Secretary, Department of Revenue, North Block, New Delhi.
2. The Secretary, Department of Expenditure, North Block, New Delhi.
3. The
Secretary, Department
of Personnel and Training, North Block, New Delhi.
