A. During the year 1978, Appraisers
of Customs ( A.K. Chatterjee and others) filed a writ petition before the Apex Court for the reason that
some of their counterparts from Central Excise Deptt. (Superintendent of
Central Excise) junior to them by 1 to 1 and half years in the
Service have been promoted ahead of them. They wanted that Recruitment Rules should be framed & promotions from
the feeder categories should be done on the basis of length of service in the
lower cadre. The Apex Court directed to
frame RRs. Accordingly as per direction of Apex Court Govt. framed
Indian Customs and Central Excise (Gr-A) Recruitment Rules in 1987 based
on length of service in the feeder cadres ( i.e. to allow promotions
to the post of AC a common seniority list
was required to be prepared
amongst the three feeder categories based on length of service ). This
was challenged by then AIFCEGEO ( now
AIACEGEO) & then AIFCEEO( and now AICEIA)in SC jointly under WP No 306/1988. While the matter was
pending in SC for decision ,the
CBEC made a deceptive proposal
dt. 08 -10-1988 in total disregard of the facts & distributed
the Posts within the Customs and Central Excise Service on the basis of
the Custom Service Posts and Central Excise Service Posts in entry level
in group A of Asstt. Commr.of Customs and Central Excise. Whereas, the fact is
that the Customs Service Group A and Central Excise Service Group A were
merged from 15th August 1959 into a single service of Customs and Central Excise Service
Group A. The Apex Court vide WP No 306/1988 without any judicial
determination had accepted such proposal of CBEC and directed for 6.1.2 ratio for promotion to Gr-A
and accordingly the Gr-A RRs was amended during 1998.
B. The Superintendents Customs (
Preventive) filed OA in CAT Bombay and vide O.A. 489/1999 ,the CAT directed in July 2001 to consider the grievances of the
Supdt, of Customs. Against such decision of CAT, Appraisers of Customs filed
Appeal before High Court of Bombay and Bombay High Court sated that CAT , Bombay is not having any jurisdiction in passing orders of July 2001. Supdt. Of Customs filed an Appeal against the orders
of the Hon’ble Bombay High Court before the Hon’ble Supreme Court of India.
C. WP No.385/2010 was filed by
AIACEGEO (through Shri Vimal Kumar )
before the Apex Court. The Hon’ble Supreme Court of India vide Writ Petition (Civil) No. 385 of 2010 delivered
the following judgment by consensus :-
“We
have heard learned
counsel for the parties in Civil Appeal No. 1198
of 2005 and Writ Petition (Civil) No. 385 of 2010.
It has been brought to our notice that the Union of
India in terms of our previous order / directions dated 22nd November, 2010 and
06th December, 2010, has filed an affidavit in Civil Appeal No. 1198
of 2005, inter alia, stating, that it has
initiated the
process of
reviewing the Recruitment
Rules, 1987 for promotion from Group 'B' posts to Group 'A' posts. The
entire scheme is being re-looked and worked out at the departmental level in
consultation with an expert body including the Department of Personnel and the
entire process is likely to be completed by 31st December, 2011.
In the aforesaid background, we deem
it proper and in the interest of all parties concerned to dispose of both the
Civil Appeal as also the Writ Petition without expressing any opinion on the
merits of the
impugned judgment or the writ petition but with the following
directions:
1.
All the 3 groups of officers in the feeder categories i.e. (i) Superintendents
of Central Excise; (ii) Superintendents of Customs (Preventive); and
(iii) Customs Appraisers, may make representations to
the Union of India suggesting
the changes which according to them should be made in
the Recruitment Rules for their promotion to Group-A post of Assistant
Commissioner (Central Excise & Customs).
2.
The Union of India shall duly consider all such representations including those
made before it in light of the subsequent development in the cadre
strength of the 3 feeder
categories of group-B services and amend/revise the
Recruitment Rules including altering the existing ratio
to secure just and fair representation of all the 3 feeder categories.
3.
Union of India shall try to complete the entire process by 31st December, 2011,
uninfluenced by any observations made in the previous judgment of this Court in
All India Federation of Central Excise vs. Union of India &Ors. [(1997) 1
SCC 520], in which the existing ratio was approved as also
the observations in the impugned judgment dated 19th December,
2003 of the High Court in Writ Petition (Civil) No. 1324 of 2002 with regard to
the jurisdiction of the Central Administrative
Tribunal.
4.
Having perused one of the Office Orders (No. 51/2011 dated 18th
March, 2011), whereby some officers were promoted from Group 'B' to the grade
of Assistant Commissioner of Customs & Central Excise in the
Pay Band 3 with Grade Pay of Rs.5400/- on purely ad hoc
basis, we direct that all such ad hoc promotions shall abide by the final
decision to be taken by the Department in terms of this order”.
D. As per Apex court decision dt.3.8.2011, CBEC in its board meeting held on dt.16.9.2011
took the
decision for preparation of RRs by altering existing ratio for 3 feeder cadres
to 13:2:1 and also decided to make regularization of all adhoc
promotions pending since 97 in old ratio under the provisions of previous RRs. The new RRs has been notified on 13.9.2012 for
implementation prospectively. The prayer of CBEC for amendment of SC order dated 03.08.11 was
rejected by Apex Court on 30.3.2012.
E. Contempt
petitions were filed against the Board decision dated 16.09.11 before the Apex
Court. The honourable Apex Court , considering the SC decisions dated 03.08.11,
30.03.12 and Board decision dated 16.09.11 rejected the contempt petition and decided that there is no contempt. Apex Court
considered that the decision of Board dated 16.09.11 is appropriate one.
The order of Apex Court on such contempt petition is produced below:
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
CONTEMPT PETITION (C) NO.295/2012 IN W.P(C) NO.385/2010
ALL INDIA ASSN.OF CEN.EXC.& ANR. Appellant(s)
:VERSUS:
R.S. GUJRAL & ORS. Respondent(s)
WITH
CONTEMPT PETITION (C) NO.285/2012 IN CIVIL APPEAL NO.1198/2005
S.P. DUDEJA & ANR. Appellant(s)
:VERSUS:
S.K. GOEL & ANR. Respondent(s)
O R D E R
1. Heard Mr. Vikas Singh, learned senior counsel in support of
the first contempt petition and Mr. J.K. Das, learned senior counsel in support
of the second contempt petition. Both these petitions are filed alleging breach
of the order dated 3.8.2011 passed by this Courtin Civil Appeal No.1198 of 2005
and Writ Petition (Civil) No. 385 of 2010. The petitioners in the first
contempt petition belong to the cadre of Superintendents of Central Excise,
whereas the petitioners in the second contempt petition belong to the
cadre of Superintendents of Customs (Preventive). There is one more cadre
of the same rank which is that of Customs Appraisers. The posts in these
three cadres are Group B posts. They are the feeder cadres for promotion to
the posts of Assistant Commissioners (Central Excise & Customs) which are Group
A posts.
2. These three cadres were then having the ratio of 6:1:2 for
promotion to Group A posts. The issue was with respect to the proper
representation of the three cadres. When the above referred writ
petition and civil appeal were heard, this Court did not express any
opinion on the merits of their claims, and it was left to the
Government to alter the existing ratio after considering the
representations of all the parties concerned. While disposing of the
appeal and the writ petition this Court gave certain directions.
Direction No.4 out of them read as follows:
"4. Having perused one of the Office Orders (No.51/2011 dated
18th March, 2011), whereby some officers were promoted from
Group 'B' to the grade of Assistant Commissioner of Customs &
Central Excise in the Pay Band 3 with Grade Pay of Rs.5400/- on purely
ad hoc basis, we direct that all such ad hoc promotions shall abide by
the final decisions to be taken by the Department in terms of this order."
3. It has so transpired that the relevant rules have been
subsequently revised and now the quota for the three cadres for
promotion to the Group A posts is in the ratio of 13:1:2. The new
quota is made applicable prospectively.
4. The submission of the petitioners is that by this Court's
order dated 3.8.2011, directions were issued to the respondents which
have not been complied with by them. The petitioners contend that this
direction No.4 implies a retrospective application of the revised
formula on the quota for each cadre, since the promotions effected in
the meanwhile were on an ad hoc basis. That was not done.
5. Mr. Amarendra Sharan, learned senior counsel appearing on
behalf of the intervening parties, Mr. Rajiv Nanda appearing for the
Union of India and Mr. Patwalia, learned senior counsel appearing on
behalf of the private respondents submitted that the submission made
on behalf of the petitioners is erroneous. The order did not state
anywhere that the quota when changed will apply retrospectively.
At best it could be said that according to the petitioners the
implementation was not in conformity with the directions of this Court
passed on 3.8.2011, but there is no disobedience, whatsoever, of the
directions in making the newly formed quota applicable prospectively.
6. Having noted the submissions of both the parties, we are in
agreement with the submissions made on behalf of the Union of India as well
as the intervenors. All that the order dated 3.8.2011 says is that the
ad hoc promotions made in the meanwhile will abide by the final decision
to be taken by the Department in terms of Office Order.
There is no direction to apply the new quota retrospectively. We do
not see that there is any contempt of this Court's order dated
3.8.2011 by the respondents. The contempt petitions are accordingly
dismissed.
.........................J
(H.L. GOKHALE)
...........................J
(DIPAK MISRA)
New Delhi;
March 12, 2013.
ITEM NO.6 COURT NO.12 SECTION X
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CONTEMPT PETITION (C) NO. 295 OF 2012 IN W.P(C) NO. 385/2010
ALL INDIA ASSN.OF CEN.EXC.& ANR. Petitioner(s)
VERSUS
R.S. GUJRAL & ORS. Respondent(s)
WITH
CONMT.PET.(C) NO. 285 of 2012 in C.A. No. 1198/2005
(With application for impleadment)
Date:12/03/2013 These Petitions were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE H.L. GOKHALE
HON'BLE MR. JUSTICE DIPAK MISRA
For Petitioner(s) Mr. Vikas Singh,Sr.Adv.
(in CP 295/12) Mr. Sibo Sankar Mishra,Adv.
Mr. Adbhut Pathak,Adv.
(in CP 285/12) Mr. J.K. Das,Sr.Adv.
Mr. S.K. Das,ADv.
Mr. Avijeet Bhujabal,Adv.
Mr. P.P. Nayak,Adv.
Mr. D.M. Sharma,Adv.
For Mr. Parmanand Gaur,Adv.
For Respondent(s) Mr. H.P. Raval,ASG
Mr. Rajiv Nanda,Adv.
Mr. V.K. Biju,Adv.
Mr. B.K. Prasad,Adv.
for Mr. Arvind Kumar Sharma,Adv.
Mr. P.S. Patwalia,Sr.Adv.
Mr. Jitendra Mohan Sharma,Adv.
Mr. Samar Singh,Adv.
Mr. Ajit Sharma,Adv.
-2-
Mr. Amarendra Sharan,Sr.Adv.
Mr. L.R. Singh,Adv.
Mr. S.C. Jha,Adv.
UPON hearing counsel the Court made the following
O R D E R
Heard the learned counsel for the parties.
We do not see that there is any contempt of this Court's
order dated 3.8.2011 by the respondents. The contempt petitions are
dismissed in terms of the signed order.
(A.S. BISHT) (SNEH LATA SHARMA)
COURT MASTER COURT MASTER
(Signed order is placed on the file)
F.
Thereafter interventions petitions were filed before
the Apex Court and the order of Apex
Court is produced below:
ITEM NO.2 COURT NO.12 SECTION IX
S U P R E M E C O U R T
O F I N D I A
RECORD OF PROCEEDINGS
IA No.1/2013 IN
CIVIL APPEAL NO(s). 1198 OF 2005
S.P. DUDEJA
& ORS.
Appellant (s)
VERSUS
UNION OF INDIA
& ORS.
Respondent(s)
(With appln(s)
for directions and office report )
WITH IA Nos. 4
and 5 IN W.P(C) NO. 385 of 2010
(For appropriate
orders/directions and stay and With office report)
Date:
11/07/2013 This Appeal was called on for
hearing today.
CORAM :
HON'BLE MR. JUSTICE H.L. GOKHALE
HON'BLE MR. JUSTICE MADAN B. LOKUR
For
Appellant(s) Mr.
A.K.Ganguly,Sr.Adv.
Mr. J.K.Das,Adv.
Mr. S.K.Das,Adv.
Mr. Avijit
Bhujabal,Adv.
Mr. P.P.Nayak,Adv.
Mr. D.M.Sharma,Adv.
Mr. Parmanand Gaur,Adv.
Mr. Sibo Sankar
Mishra,Adv.
For
Respondent(s)
Mr. Lakshmi Raman
Singh,Adv.
Mr. Jitendra Mohan
Sharma,Adv.
Mr. Ashwani Garg,Adv.
Mr. Avirul Saxena,Adv.
Mr. Rajiv Nanda,Adv.
Ms. Seema T.,Adv.
Mr. Manish Kumar
Vikkey,Adv.
Mr. B.K.Prasad,Adv.
Mr. Arvind Kumar
Sharma,Adv.
-2-
UPON hearing counsel the Court made
the following
O R D E R
In IA No.1 in C.A.No.
1198/2005
Heard Mr. A.K.
Ganguly, learned senior
counsel in support of I.A.No.1/2013.
In our view, the
applicants seek almost a review of the
order dated 3rd August, 2011 passed by this Court and we do not see any reason to interfere with the said
order. We are of
the view that it will be reopening
the entire case.
We are,
therefore, not inclined to
entertain this application.
It is accordingly dismissed.
Mr. Ganguly, however,
states that the applicants may avail of their remedy by approaching the
Administrative Tribunal.
If they do so, the Tribunal will
look into the matter on its own merits.
In IA Nos. 4&5 IN
W.P.(C) No. 385/2010
Heard Mr. V.Giri,
learned senior counsel in support of these I.As.
He states that the applicants would like to make fresh representation to the Union of India and
in the event the
petitioners are aggrieved by the decision
thereon, they make take appropriate
recourse. After making
this statement, Mr.
Giri prays for withdrawal of these
I.As. These are
accordingly dismissed as
withdrawn.
If
any representation is
made, we expect
the respondents to look into it
expeditiously, preferably within
8
weeks from the receipt thereof. The decision will be taken after considering the merits of the submissions of
the petitioners.
[SUMAN WADHWA] [SNEH LATA SHARMA]
AR-cum-PS COURT MASTER
Views of Board-
The Contempt petition was filed in the name of Secretary ( Revenue). The
Apex Court had decided the case basing on the decisions of 03.08.11, 30.03.12,
the petitions and counters etc. The plea of Secretary ( Revenue) was accepted
by Apex Court, hence Board can not take any decision contrary to the counters
filed in contempt petition, hence the representations as submitted by
petitioners will be decided on the basis of the Board Minutes dated 16.09.11
only.
Legal opinion-
GR-A RRs was
framed by Board during 1987 to allow promotions to the post of AC on the basis
of common seniority list to be prepared amongst
the feeder categories. This was challenged by
then AIFCEGEO ( now AIACEGEO)in SC and SC directed for 6.1.2 ratio for
promotion to Gr-A and accordingly the Gr-A RRs was amended during 1998. Hon'ble
Supreme Court of India issued
directions on 3.8.2011 in
WP No.385/2010 interalia to revise/amend the existing Gr-A RRs including
altering of ratio to ensure just and fair representation of officers of all 3
feeder categories in promotions to Gr-A and to remain uninfluenced by its(SC)
earlier observations in 306/88 .As Board
took the stand during 1987 for common seniority list , it was not required on
the part of Board to change it stands during 2012 as AIACEGEO
has pleaded for Common seniority list instead of ratio. Therefore it is
required to challenge the present RRs in CAT to restore the RRs since 87 duly
scrapping the amendments of 98. If the RRs in original form will be restored
automatically all promotions made adhoc since 97 will be regularized on the
basis of said RRs only.
