The regional disparity in promotions is existed in our
Department since its creation. This regional disparity in promotion is also
existed in other departments like Railways, AG, CBDT, Postal etc. The promotions to the post of Supdt. are being allowed
zone basis on the basis of Supdt. CE RR of 1986. This RR was challenged
in high Court of Hyderabad to convert the seniority list from zonal to all
India but high court rejected the appeal and accepted the RR as valid
one. The decision of high court was challenged in Apex Court but Apex
Court accepted the decision of High Court and again directed to determine the
seniority as per decision of W.P.CIVILNO 306/88. The Apex Court's decision in case of All
India Federation of Central Excise v.U.O.I (W.P.Civil No 306/88) vide para-7 of
the said decision it is interalia held that Superintendent of Central Excise
are to be placed in their respective seniority( consideration) list on
the basis of their continuous length of service in the cadre of Supdt. . In
view of the directions of Apex Court in Radhey Shyam v.U.O.I, DOPT has directed
that a requisition in the prescribed form is to be placed on the SSC by
the appointing authority for selection of candidates on direct recruitment
basis. The selected candidates will be appointed by the appointing authority
under his jurisdiction only. For all service matters including vigilance and
seniority etc. the appointing authority is the deciding authority as per
different guidelines. The name of the selected candidates will be taken place
as per merit in the seniority list maintained by such appointing
authority. Therefore on inter Commissionrate transfer one is loosing his
seniority as he is being transferred to the jurisdiction of another appointing
authority. The Full Bench of Supreme Court in R.D.Gupta v. U.O.I-
19909(1) ATJ 212 had clarified that if an employee is promoted after DPC has
found him fit for promotions that period should be count for seniority. The
clarification given by Gupta case is clearly consistent with law laid down by
the Apex Court in 1990(2) ATJ35-JT(2) SC 264 between Direct recruit vrs.State
of Maharashtra. It has been laid down that where an incumbent is appointed to a
post according to the Recruitment Rules his seniority hs to be counted from the
date of his appointment. Very interestingly para-5 of the sad decision provides
that 'if the initial appointment is not made by rules but the appointee
continues in the post uninterruptedly , the period of officiating service
will be counted for his seniority. The Apex Court in the
Judgement of Radheshyam Singh (which is not related to Recruitment Rules or
seniority but related to selection by Examination ) has clearly stated for
prospective amendment of examination provision on or after 01.01.1997. After
pronouncement of judgement by Apex Court in Radheshyam case the Board
has decided for merger of all three base cadres such as Inspector/PO/Examiner
in to one cadre and accordingly one minutes was recorded but very unfortunately
none of our Associations pursued for such implementation. The
Inspectors Federation raised such issue before CAT , Mumbai in OA
451/2002, the CBEC in counter to said OA stated that the matter is under active
consideration and would be dealt
separately. Board accordingly constituted Bharadwaj committee popularly known as merger
committee , Bhardwaj Committee recommended for merger of all three base
cadres prospectively w.e.f. 01.01.2006.
But at that time our Association did not raise any objection to such
recommendation.
After a long
time one of our office bearers of Mumbai
has raised such issue for merger of all three base cadres in the Associate Committee meeting of our
Association during 2011. After such
meeting he has sent a mail stating that –“ I
say parity not with x y or z, I say we are Group 'B' officers, recruited by
passing same exam, we perform all the duties including as C. Ex. Officers,
possess the same qualification, Where as our counter part does not
perform the duties as C.Ex. or Service Tax officers so we are above then them
then we should be placed at same place at least if not above where our counter
part of same recruitment year reached as of now. That parity can be achieved
with this order as it says just and fair representation and in past also ratio
was fixed on same lines. So this will serve the purpose. And all cadres can
join with same demand in agitation as it will help all of us. If by any
imagination CBEC says not possible - then separate us immediately should be our
counter before restructuring with only rider DR IRS only 50% with Central
Excise and those who have more background of excise. I am sure that if we toe
this line of action vigorously there is no answer with CBEC how to deny and why
they discriminate us all these years. By this we can even achieve unity in all
cadre also”. –
However in our AC meeting the issue was discussed again and it was
resolved that we should raise before Board to allow parity in promotions along
with Examiners. Accordingly several representations were submitted by our
Association to Board for consideration of the same, since Board did not move an inch on the basis of our representations, an OA bearing no 2323 was filed
as per resolution before CAT(PB) with the following prayers:
(a) Pass Order or Direction commanding
the Respondents to produce the record of the promotion policy and produce the
records in r/o the action taken against para 3.1 at S. No. 3 (BMB No. 06/2011)
of the minutes of the meeting of CBEC held on 12-1-11 as well as presentation
dt 18-1-11.
(b) Direct the Respondents to Amend/revise the Recruitment Rules
to bring all the Inspectors (i.e., Inspectors of Central Excise, Preventive
Officers and Examiners of Customs) recruited in a particular year
through All India Combined Examination in parity as per their seniority
position in respect of their service conditions and promotions to maintain the
principal of equal opportunity & equality before law.
(c) Direct the Respondents to dispose of all the Representations of the
Applicants with speaking order and to save the senior Central Excise officers
from humiliation of working under their juniors recruited much after in
Customs belonging to the same cadre of Inspector in CBEC.
(d) Pass any such other order or
orders, as maybe deemed fit and proper.
The case was heard on
19.07.12 and notice was issued to
the CBEC to file the Counter. In the Counter Board pleaded about existence of
regional disparity in promotion as existed on our cadre. In Rejoinder we
pleaded for removal of the same duly merging all base cadres retrospectively.
The matter is pending for decision. While the matter is subjudice, in our last
AEC meeting held at Patna , one unit for
the first time in the history of our Association has raised a point for removal of regional disparity
retrospectively and preparation of all India seniority list of Inspectors and
the relaxation of Gr-A RR to allow promotion to the post of AC on the basis
of one all India seniority list of
Inspector to be prepared by Board duly scrapping all promotions made to
the post of Superintendents on the basis of Superintendent of Central Excise
Recruitment Rules. A resolution
committee was constituted in AEC meeting to adopt resolution on the same, but
as majority units wanted time for discussion on such issue, the resolution
committee in a note suggested to discuss such issue in our next AEC meeting.
As regards relaxation of Gr-A Recruitment Rules to
allow promotions to the posts of Asst. Commissioner on the basis of
one imaginary all India seniority list of Inspector, we have made a
discussion with DOPT officials recently. The DOPT officials opined
that DOPT vide OM No. AB.14017/48/2010- Estt(RR) dated
31.12.2010 prescribes the guidelines on framing /amendment/relaxation of
RR. Part-IV of such OM provides for amendments and Relaxation. In case of
Organised Cadre only , a proposal for relaxation can be made out as a result of
review of such service if Cabinet has approved to fill up certain posts by
promotion from feeder categories . The proposals for relaxation should be
made in the formant prescribed under Annexure-IV. The formant duly filled
in should be forwarded to DOPT /UPSC along the approved seniority lists
prepared on the basis of DOPT guidelines of feeder categories who
are to be considered for such relaxation. Relaxations as a result of cadre
review can be considered in case of feeder categories only but this facilities
can not be extended to sub feeder categories. No relaxation can be provided
with reference to fixation of seniority in sub feeder categories. Relaxation of RR
does not mean relaxation of seniority. It is very unfortunate to state that many of
our friends are having with an opinion that
AIACEGEO is not interested for removal of regional disparity. We want to
make it clear that parity is the basic concept of our Constitution, hence
AIACEGEO wants parity in promotion. At the cost of repetition we
want to clarify that first, all our friends raised in the
meeting for one issue that no senior should work under junior and wanted
parity with Examiners and accordingly on the basis of the resolution
representations were submitted to Board by AIACEGEO for consideration and
thereafter an OA was filed in CAT as per resolution , which is at
present pending for decision. If parity with examiner will be settled,
automatically the issue of regional disparity will be solved. The
regional disparity as existed in the cadre of Superintendent can be
settled if the Superintends of Central Excise Recruitment Rules is amended
retrospectively with a retrospective provision of preparation of all
India seniority list in the cadre of Inspector and with due declaration that
all the promotions made to the post of Superintendents till date are illegal
and fresh promotions to the cadre of Superintendent on the basis of so called
proposed amended RR are to be granted. However the removal of
regional disparity or preparation of seniority list in the cadre of Inspector
is no way related to CR. For removal of regional disparity or preparation of
seniority list as per merit list, a case is required to be filed challenging
the Supdt. RR. But some friends have recently advocated that the regional
disparity can be removed if the Gr-A RR is being relaxed to allow
promotions to the post of AC on the basis of all India seniority list of
Inspector duly ignoring the promotions granted to the post of
Superintendent. Recently the Solicitor General has given an opinion that
Gr-A RR can not be relaxed violating the article 14 of constitution of
India. DOPT has also already clarified that the RR can be relaxed considering the
following four issues:
(1) The relaxation shall not violate the provisions of Recruitment Rules
of feeder categories.
(2) The relaxation shall not violate the Guidelines of general principles of
fixation of seniority as issued by DOPT from time to time.
(3 ) The relaxation shall not violate any decisions of any Court.
(4) The relaxation shall not violate the provisions of article 14 & 16 of
Constitution of India.
As regards point nos.(1) &(2) above- Since promotions to the
post of Superintendent are being allowed on the basis of
Superintendent of Central Excise Recruitment Rules, the promotions to higher
posts must be granted on the basis of seniority list or gradation list
prepared as per DOPT guidelines in the cadre of Superintendent only.
As regards point (3) - The Apex Court has decided to prepare the seniority list
in the cadre of Superintendent only to allow promotion to the the post of
AC on prescribed ratio.
As regards point (4) above- Inspector is one class and Superintendent is
another class. Comparison for the purpose of article 14 is required to be made
in same class, otherwise the same will be considered treating un equal with
equal and that will violate the basic principles of Constitution of
India.
Therefore in the present circumstance RR may not be relaxed. Unless the
provisions of Supdt RR is set aside by a court of laws with retrospective
effect, the regional disparity can not be solved retrospectively. Since
AIACEGEO has already filed a case and took a stand as per resolution, it is not
possible to withdraw the case and file another petition with a different
footings., In the case in the counter, Board has also raised about disparity as
existed in Zonal basis, but in rejoinder AIACFEGEO appealed for removal
of the same. AIACEGEO is working for the benefits of all including
stagnated zone. AIACEGEO is also interested for removal of
intra cadre as well as inter cadre disparities. In the case of T.R. Kapur &
Ors vs State Of Haryana & Ors on 17 December, 1986 Supl. 584 JT 1986
1092 1986 SCALE (2)1051 CITATOR INFO : F 1987 SC 424 (11) RF 1987 SC1676 (17) R
1988 SC1645 (6) RF 1989 SC 307 (5) D 1990 SC1072 (5) , the Apex court has
decided that benefits acquired under existing service rules
cannot be taken away by amendment of rules with retrospective effect.
Persons appointed or promoted under a valid Recruitment Rules are seniors to
officers of feeder categories. Recruitment Rules can not be amended
retrospectively to make such officers juniors to officers who
promoted or appointed later on. Service laws can not be amended
retrospectively. In Sabarwal, Ajit Singh-I, Ajit Sing-II, Virpal Singh
Chauhan cases it was decided to amend service laws prospectively only. The
Apex Court in the Judgement of Radheshyam Singh (which is not related to
Recruitment Rules or seniority but related to selection by Examination ) has
clearly stated for prospective amendment of examination provision. Para 10
reproduced.
“10. The argument advanced by the learned
counsel for the respondents that this process of zone-wise selection is in
vogue since 1975 and has stood the test of time cannot be accepted for the
simple reason that it was never challenged by anybody and was not subjected to
judicial scrutiny at all. If on judicial scrutiny it cannot stand the test of
reasonableness and constitutionality it cannot be allowed to continue and has
to be struck down. But we make it clear that this judgment will have
prospective application and whatever selections and appointments have so far
been made in accordance with the impugned process of selection shall not be
disturbed on the basis of this judgment. But in future no such selection shall
be made on the zonal basis. If the Government is keen to make zone-wise
selection after allocating some posts for each zone it may make such scheme or
rules or adopt such process of selection which may not clash with the
provisions contained in Article 14 and 16 of the Constitution of India having
regard to the guidelines laid down by this Court from time to time in various
pronouncements.”
CENGO INDIA has already stated that in the
above case, it was decided for the manner to conduct examination for selection
on all India basis . This judgement is effective only from the date of
pronouncement, it is no way related to Inspectors who joined on or before
31.12. 1996.
