Finalisation of a Scheme for granting parity with common entry counterparts to enter our officers into PB4, including removal of inter cadre and intra cadre disparity in promotions..

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 306/88 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 306/88 was valid up to October 2011. In the petition both the Federations have accepted promotions on regional/zonal basis.    The honourable Apex Court in 306/88 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.   No rule permit to place any senior Superintendent to lower position and grant him/her ad hoc status.. 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  and violating the provisions of article 14 & 16 of Constitution. 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  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 promotions to the post of Supdt. are being allowed zonal basis on the basis of Supdt. CE RR of  1986, accordingly the seniority list is being prepared on the basis of W.P.CIVIL NO 306/88. 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.

                            Some of our friends have stated that  the  regional disparity can be removed  retrospectively  on the basis of following points:
(a)- As per the minutes of Board during 1996 for merger of cadres, (b) the directions of Apex Court in Radhey Shyam v.U.O.I, (c) promotion on the basis of qualifying years of service (c) relaxation of  RR to allow seniority from the  date of joining in the cadre of Inspector.
          In this connection I would like to clarify that (a) the Board minutes was for merger of Inspectors/ PO/ Examiner, therefore our Association as per resolution demanded for base cadre parity and filed a case also in CAT on such issue. (b) the directions of Apex Court in Radhey Shyam v.U.O.I, was for preparation of merit list in examination. This case is no way related for fixation of seniority retrospectively.  The appointing authority for Inspector is Commissioner of  CEX. SSC vide article 2(iv) has considered each and every  CCA is an independent unit, there fore SSC is  accepting requisition directly from CCA and sending the list of selected candidates directly to CCA. The RR is also provides that  each and every CCA is an independent unit. Therefore Court has decided in many cases that parity under article 14 & 16 is to be maintained within CCA and not out side CCA. (c)  Seniority list has been determined as per DOPT guidelines, the consideration for promotion  for juniors if completed the qualifying years of service early than  seniors can be considered provided the seniors and juniors are belong to same seniority list and seniors can be considered for promotion at par with juniors if seniors has completed the probation period. (c) relaxation is possible provided the same has not violated the provisions of article 14 &16 of Constitution. But in this case those have promoted early as  Superintendent as per valid RR, can not be made  juniors to those who got promotion subsequently. The right to equality guaranteed under Article 14,  the position is well settled that the said right ensures equality amongst equals and its aim is to protect persons similarly placed against discriminatory treatment. It means that all persons  similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed.  Conversely discrimination may result if persons dissimilarly situate are treated equally. Even amongst persons similarly situate differential treatment would be permissible between one class and the other. In that event it is necessary that the differential treatment should be founded on an intelligible  differentia which distinguishes persons or things that are grouped together from others left out of the group  and that differentia must have a rational relation to the object sought to be achieved by the statute in  question.”

The Secretary General  vide   Ref. No. 255/CR/13  Dt. 06.09.13 has submitted one representation to  Sh. Ajit Kumar Seth,  The Cabinet Secretary, Govt. of India, interalia stating the followings:      

“i) Specific measures to grant parity with the common entry counterparts of CSS etc. may kindly be devised independent of cadre restructuring for the officers recruited, whether promotee or direct, as Inspector of Central Excise enabling them also to attain PB4 levels.

ii) The immediate steps may kindly be taken to convert the temporary posts to permanent/regular,

iii) All the posts, whether temporary or permanent/regular, may kindly be filled-up only by promotions like the last cadre restructuring.

iv) All the posts/vacancies (newly created and cascaded downwards on account of promotions on higher posts) may kindly be filled-up in one go like the last cadre restructuring.

v) All the posts at STS (Deputy Commissioner) level may kindly be initially operated at JTS level (Asst. Commissioner) in terms of the provisions of GFR 254 or be converted to JTS level keeping in view that all the officers at JTS level are to be automatically promoted to STS after 4 years of service.

vi) No direct recruitment may also kindly be made to IRS at least for next 5 years after the implementation of cadre restructuring”.    

The Secretary General has also submitted  two  representations. 1^st one for  Filling-up of the regular vacancies/posts of Asstt. Commissioner by stating that  “a total of 402 posts are vacant in Group ‘A’ as on 01.01.13. This figure may have increased on account of the retirements after 01.01.13. In addition to it, 489 vacancies of Asstt. Commissioner will cascade on account of promotions to higher Group ‘A’ posts as per the implementation of cadre restructuring. 200 additional posts of Deputy Commissioner and 300 of Asstt. Commissioner are also going to be created on regular basis as a result of cadre restructuring in addition to 2118 temporary posts for 5 years. Thus, the total of regular posts at the level of Asstt. Commissioner comes to be 1391+.           . It is being expected that the above stated 2118 temporary posts would be filled-up only by promotions in one go and also the vacancies arising out of the retirements against these posts would be filled-up only by promotions for coming 5 years. `         . Now on coming to filling-up of 1391+ regular posts particularly keeping in view the extraordinarily acute stagnation of Central Excise Superintendents, it is requested that the direct recruitment may kindly be minimised to minimal or all of the posts may be filled-up by promotions in one go and make no direct recruitment to IRS at least for next 5 years after the implementation of cadre restructuring. It will also help to improve the stature of direct IRS. Even if any minimum direct recruitment is made to these posts (say that it is 100 or 150), the remaining 1291+ or 1241+ posts may kindly be filled-up by promotions in one go and, thereafter, the posts being vacant on account of retirements also be filled-up by promotions. No need to say that the officers promoted to these posts would retire around within one year on account of their promotions at the fag end of the career and, thus, there would happen no administrative inconvenience”.

 The second one for   : Regularisation of ad hoc promotions as per the verdict given by Hon’ble Supreme Court, by stating that  “the Hon’ble Apex Court directed the CBEC vide the verdict of 03.08.11 in CWP No. 385/10 to regularise all the ad hoc promotions made to the post of Asstt. Commissioner. These ad hoc promotions are to be regularised since 1997 as no regular DPC has been conducted for the promotion to the post of Asstt. Commissioner since then. . It is also well pertinent to submit that the CBEC sought the time only upto October,12 from the Hon’ble Supreme Court for conducting the DPC to regularize the said promotions. The time limit of October,12 has already expired by more than 10 months but no DPC has been conducted till date.  . It is also worth to mention that the said DPC is required to be conducted as per the Recruitment Rules in force on the date of DPC and also the provisions of extended panel are to be applied to the DPC.  The DOPT OM No. 28036/1/2012-Estt(D) Dt. 03.04.13 under the subject of Ad-hoc Appointment/Promotion-Review of-Regarding. Its first para says that as per the extant policy of the Government, all posts are to be filled in accordance with provisions of the applicable Recruitment Rules/Service Rules. No need to say that the applicable Recruitment Rules in this case are new rules prescribing the ratio of 13:2:1 (it is another thing that these rules are also not acceptable to the Association) instead of 6:1:2 as old rules have already been repealed. Even otherwise, the Recruitment Rules in force on the date of DPC are to be applied for any DPC.  Further para 5 of the above mentioned DOPT OM reiterates that an ad-hoc appointment does not bestow on the person a claim for regular appointment and the service rendered on ad-hoc basis in the grade concerned also does not count for the purpose of seniority in that grade and for eligibility for promotion to the next higher grade. It means that all of the ad-hoc promotions made upto the post of Chief Commissioner & above are unlawful and all the officers are required to be reverted back to their original/initial post by making due recovery of higher salaries from them. Para 6 of above OM reiterates that the ad-hoc promotion shall  automatically cease on the expiry of the one year term, if the approval of the Department of Personnel & Training to the continuance of the ad-hoc arrangement beyond one year is not received before the expiry of the one year period.    In view of the above, it is requested that the said DPC may kindly be conducted immediately as per the Recruitment Rules in force on the date of DPC applying the provisions of extended panel”. 

Now a question arises as to how to solve the regional disparity in promotion as existed in our cadre? The Secretary General has already issued  a notice to conduct one AC meeting at New Delhi  on 21.09.13. For  the meeting , there is  an important agenda point  i.e  .      Scheme granting parity with common entry counterparts to enter our officers into PB4.. On this agenda point we have to discuss as to how the issue of stagnation as existed in our cadre can be solved including regional disparity and intra cadre disparity in promotion. The cadre restructuring can not solve our stagnation issue. During last CR only 586 nos of  Gr-A posts were created. This time maximum temporary Gr-A posts are going to be created and this will no way solve our stagnation problem. Gr-A  RR can not be relaxed   contrary to the provisions of Superintendents of Central Excise Recruitment Rules as the same will be considered treating equal with un equal  and there by a clear cut violation of article 14 & 16 of Constitution of India. The DOPT is willing to examine the stagnation issue separately independent to CR. Board is also wiling to examine the stagnation issue separately  immediate after implementation of CR.  Therefore we have to submit a proper representation  to solve the stagnation issue and for that matter we have to finalise a scheme.  Hence those will attend the meeting  are requested to come forward  with proper home work for finalisation of such scheme. 

 We have  already clarified that  units can sponsored their points through regional office bearers.  Unit Secretaries  and Presidents  can also attend such meeting.   It has already been  clarified that only Office Bearers of AIACEGEO are authorised to attend the meeting, they can participate and discuss as per agenda points  with voting power.  However there is no harm  for attending  of the meeting by  any willing  Unit Secretary / Unit President  and  they  can participate in discussions without any  voting power.