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We have already clarified that the
cadres of Inspector and Superintendent are not falling under any service ( like
CSS, IRS etc.) The promotions to the post of Superintendent are being awarded on the basis of the valid Superintendent of Central Excise Recruitment
Rules which has been issued under the
provisions article 309 of the Constitution of India. This RR has been providing for promotion on
CCA (Zonal ) basis. Therefore Seniority Lists as per DOPT guidelines are being
issued in the cadre of Inspector of Central Excise on Zonal basis since
creation of this department. This RR was challenged in High Court of Andhra
Pradesh by Supdts. Association of Hyderabad and one Mr.Laxamana Rao. But High
court rejected the writ and up held the RR as valid one. Against such decision
of High Court, Hyderabad Association moved to SC but SC rejected the petition. It
is a one line order.,WP no.3835 of 1981.."The wp has become infructuous
and accordingly dismissed .No costs. 'on 24/9/1996.However another linked
matter WP nos 512 and 835 of 1988 was disposed relying on Gaya baksh yadav
caseJT 1996 (5)SC 118.The contention of mr.Rao in the petn was for all india SL
of Insprs or count total service as inspr and supdt considering the disparity
in various commtes.It was also pleaded that if each commte is treated as
separate.then separate quota must be
allotted just like cus apprs and supdts. Of course, the case was linked with
306/88 at various stages but disposed differently.. WP No 302/88 was filed by both the Federations of
Inspectors and Superintendents jointly The Gr-A RR published on the basis of
the decision in WP no 302/88 was valid up to October 2011. In the petition both
the Federations have accepted promotions on regional/zonal basis. The honourable Apex Court in 302/88 had
directed to cast seniority list of Superintendents of Central Excise basing on the date of joining
in the post of Superintendent of Central Excise on All India basis.
Moreover creation of CCAs is a policy decision
, which can not be challenged in CAT. Therefore those joined in the grade of
Supdt early are seniors to those joined in the grade of Supdt subsequently
irrespective of date of joining in Inspector grade. The Guideline of DOPT vide
OM NO. AB-14017/12/88-ESTT is not helpful for removal of regional
disparity in promotions. FR has also accepted
for creation of separate cadre on regional basis for which step up of pay is not allowed to seniors of other zones.
After a long time without knowing the back grounds of the issue, few units of
AIACEGEO are raising the issue of regional disparities in
promotions and asking that the promotions to the post of Asstt. Commissioner
should be granted on the basis of joining in the Inspector cadre. They insisted
that the combined length of service as Inspector + Superintendent should be
counted for the grant of promotion to the post of Asstt. Commissioner by
treating the already promoted senior Superintendents as ad hoc. Actually AIACEGEO is pursuing the matter of parity with the common
entry counterparts which automatically solve this problem. The AIACEGEO has
already filed a case in the CAT for parity in promotions with the Examiners as
the Examiner of 1992 has already become Asstt. Commissioner. Therefore at this stage no one
should engage themselves with intra-Central Excise fighting. Instead of
it, we should fight unitedly with common opponents to get actual relief. This
would also cause litigations in the
legal courts and nobody among us would be able to get any benefit from cadre
restructuring while others would enjoy it. No rule permit to place any senior
Superintendent to lower position and grant him/her ad hoc status..
Thousands
of our senior Superintendents are already waiting for the implementation of
cadre restructuring expecting for next promotion at the fag end of the career.
The issue should have been taken up at the time of arising of these regional
disparities in the promotions to the post of Superintendents from Inspectors.
Moreover, regional disparities will automatically be removed if we are able to
get parity with Examiners & other counterparts. The issue of regional
disparities is basically related to the Inspectors Association regarding
promotion of Inspector to the post of Superintendent. The promotion to the post
of Asstt. Commissioner can never be granted by counting the length of service
rendered as Inspector to remove the regional disparities.
Not only
in Central Excise Department but also in other departments such as Income Tax,
Railways, Postal & Audit etc. there
is a provision for preparation of seniority list on Zonal basis as per
guidelines prescribed by DOPT. This has been confirmed by Apex court in catena
of judgements including Union of India Vs. N.R. Parmar (Supreme Court
Judgement 2012 STPL(Web) 687 SC )
Thus it is totally incorrect that Board has not correctly observed the
guidelines of DOPT in preparing the seniority list of Inspectors on zonal
basis. Under the circumstances promotions to the post of AC can not be allowed
retrospectively on the basis of all
India seniority list for the cadre of Inspector .Certain provisions of RR can
be relaxed but such relaxation can not be made overlooking the provisions of
another RR and the guidelines of DOPT on
the matter of fixation of seniority .
Therefore as per the present provisions of Law, the regional
disparity in promotions can not be removed retrospectively. Since AIB has
already filed a case in CAT for base cadre parity in promotion as per the
resolution of AC meeting held in
Delhi and the matter at present is subjudice, AIB can not change it stands and submit another representation on a different footings.
The
Honourable SUPREME COURT OF INDIA
in
TEJ PRAKASH PATHAK & OTHERS Appellants
VERSUS RAJASTHAN HIGH
COURT & OTHERS -Respondents
Civil Appeal No. 2634-2636 of 2013-Decided on 20-3-2013 have
petrified into a rule of law in the
context of employment under the State
about ‘rules of the game’ which cannot
be changed after the game is either commenced or played.
The question whether
the ‘rules of the game’ could be changed was considered by Honourable Apex Court on a number of occasions in different
circumstances. Such question arose in the context of employment under State
which under the scheme of our Constitution is required to be regulated by “law”
made under Article 309 or employment under the instrumentalities of the State
which could be regulated either by statute or
subordinate legislation. In either case the ‘law’ dealing with the
recruitment is subject to the discipline of
Article 14. Legal relationship
between employer and employee is
essentially contractual. Though in the context of employment under State the contract of employment
is generally regulated by statutory provisions or subordinate legislation which restricts the
freedom of the employer i.e. the ‘State’ in certain respects. In the
context of the employment covered by the regime of Article 309, the ‘law’ – the
recruitment rules in theory could
be prospective only.
In the context of
employment under the instrumentalities of the State which is normally regulated by subordinate legislation,
such rules cannot be made retrospectively . Under the Scheme of our Constitution an
absolute and non-negotiable prohibition against retrospective law making is made only with
reference to the creation of crimes. Any other legal right or obligation could
be created, altered, extinguished
retrospectively by the sovereign law making bodies. However such drastic
power is required to be exercised in a manner that it does not conflict with
any other constitutionally guaranteed
rights, such as, Articles 14 and 16 etc. Changing the ‘rules of game’ either
midstream or after the game is played is an aspect of retrospective law making
power.
