From :- S P DUDEJA
Supdt.of Customs ( Prev. )
Air Cargo Complex,
Sahar
Mumbai-400099
Dt. 11-11-2013
To
The Secretary (Revenue),
Department of Revenue, Ministry of Finance,
North Block, New Delhi-110001.
Sir,
Subject:- Consideration of my representation as per
Hon’ble
Supreme Courts judgment dated 11.07.2013- reg
This is in further reference to my earlier letter dt.
14-08-2013 wherein ,besides reference to provisions of DOPT ,I had requested
that as per the judgment dated 11.07.2013 by the Hon’ble Supreme Court of India
the concerned authorities may conduct joint meeting of the Board along with
DOPT, Law Ministry and UPSC and a substantive/ speaking order on merits be
issued by on or around 16th Sept. 2013 in respect of all the representations
received till holding of the specified meeting by the Board, with due respect
to the Hon’ble Apex Court.I had also requested that suitable instructions may
please be issued to decide all the representations on merit and pass
substantive / speaking orders in this matter. Thereby it was expected that the
Provisions of law as per advice of Law Ministry and OM’s and Guidelines issued
by the DOPT ,being special organizations in their fields, are scrupulously
followed.
I am in receipt of letter vide F.No. C-50/46/2011- Ad
II dt. 29th October,2013 stating the subject as “ Representation with reference
to Hon’ble Supreme Court of India dt. 11.07.2013 in I.A. No. 1/2013 in Civil
Appeal No. 1198 of 2005 filed by S P Dudeja &Ors” whereas, the subject of
my representation was (I) Implementation of the Hon’ble Supreme Court’s
judgment dt.03-08-2011& 11-07-2013 (II) Regularization of all Ad hoc
promotions &(III) Impact on scrapping of Direct Recruit Appraisers for
promotion from Group B to Group A posts. This by itself shows the casual approach
in dealing with the issue in question. Perusal of the said reply shows that
despite Hon’ble Supreme Court of India’s direction dt. 11.07.2013 there is
refrain from going into merits of the submissions made & reply dt.
29-10-2013 is given without going through true facts, provisions of Law ,DOPT
guidelines etc. (which should be applied & implemented without there being
any need for making submissions).
(A) I have been informed in Para 9 of the said letter
in reply dt. 29-10-2013 “ Main points raised in your representation dated
14.07.2013 ( read with letters dated 22-07-2013 and 01-10-2011) are- (i)
consultation with Department of Personnel and Training for the Revised
Recruitment rules ,whereas my submissions in my letter dated 22-07-2013 were
for invoking various OM’s on the issue by the DOPT and legality of the date of
implementation of the issue in dispute by the Law Ministry.( as submitted in
the enclosed letter dated 01-10-2011 ).
And then I have been informed in para 10 of the said
letter
“ As regards point (i) above , it is informed that as
indicated in para4 above Indian Service (Customs& Central Excise) Group ‘A’
Recruitment Rules 2012 were notified on 13th September,2012 after due
consultation, and after obtaining approval from the Department of Personnel and
Training, the UPSC, the Ministry of Law & Justice and the Finance Minister,
Whereas, from the facts it is nothing but obvious that
the entire matter has been dealt with mala fide intentions ( WHY?) to
circumvent the Hon’ble Supreme Court’s judgment dt.03-08-2011 that -(a) meeting
of the CBEC members was held on 16-09-2011 (I had no knowledge of the same) (
b) decision was taken for change of ratio ( c) it was decided that due to
extraneous reasons as mentioned therein (other than for just and fair
representation to the feeder categories ) the changed ratio be applied
prospectively and that it would be referred to the Hon’ble Supreme Court’s for
approval. (d) In the meantime matter was referred to the Hon.ble Finance
Minister for granting approval ONLY for the proposed change in the Ratio among
the Feeder cadres and it was approved on 29-09-2011( as per the knowledge and
information made out from the submissions of the file noting)(e) the Board then
started approaching as informed the various agencies like the DOPT, Law
Ministry and UPSC for the approval of their viewpoints in October 2011 and (f)
then (it appears that DOPT, Law Ministry and UPSC did not fall in their
line)U.O.I. filed an I.A. 8 in the Supreme Court asking for permission to
implement the above Indian Service (Customs& Central Excise) Group ‘A’
Recruitment Rules 2012 prospectively but the Hon’ble Supreme Court by its
judgment dt.30-03-2012 dismissed the same. I would like to submit that
applications have been made under RTI to DOPT, Law Ministry and UPSC to provide
information regarding reference made by the Board and advice given by the said
agencies DOPT, Law Ministry and UPSC for the last over 3 months but no reply
has been received so far. It leads one to believe that possibly reference would
have been made that the proposal as forwarded has been approved by the Hon’ble
Finance Minister and the said agencies i.e.DOPT, Law Ministry and UPSC would
have been asked to approve the same. Under such type of reference no one would
dare to oppose or to disagree and thus as per the game plan it was a tactics
used to strangulate their opinion & viewpoint& would thus have been
Coerced into granting their approval despite knowing that it is contrary and in
violation of the Memorandums ,Guidelines& Law points on the issues involved
( If true , then Hon.ble Finance Minister’s Honour has been sullied without his
knowledge by the perpetrators of dubious game plan ).
(B) I have been informed in Para 9 of the said letter
in reply dt. 29-10-2013 “ Main points raised in your representation dated
14.07.2013 ( read with letters dated 22-07-2013 and 01-10-2011 ) are-
………..(ii)………………( No comments )
(C)I have been informed in Para 9 of the said letter in
reply dt. 29-10-2013 “ Main points raised in your representation dated
14.07.2013 ( read with letters dated 22-07-2013 and 01-10-2011 ) are- …………………….
(iii)review and regularization of all the ad-hoc promotions made from 1997
onwards as per the revised ratio fixed under the recruitment rules,2012.
The above statement being attributed to me as my
submissions in my letter dated 22-07-2013 is totally false as is evident that I
had reiterated the submissions made in earlier letter dated 01-10-2011 and
therein the said letter after mentioning various DOPT provisions and by giving
various reasoning on points of law, history of the case with reference to
various Court Interim orders and judgments with impartiality & without
favour or bias I made suggestion for regularizing the ad- hoc promotions in the
ratio
(i) 6:2:1 from Sept 2000 or from October 2001
(ii) 9:2:1 from the date of Board’s decision i.e. from
31-03-2005
(iii) 13:2:1 from 2009 i.e. from the date of
representations from Central Excise
And then I have been informed in para 10 of the said
letter…………. “ In respect of point (iii), it is pointed out that , as clarified
by the Hon’ble Supreme Court in its order dated 12th March, 2013,, there is no
decision in its entire order dated 03.08.2013 in Civil Appeal 1198 0f 2005
(S,P.Dudeja&OrsVs UOI &Ors) with Writ Petition (Civil) No. 385 of 2010
( Vimal Kumar &Orsvs UOI &ors ),to apply the new quota retrospectively.
Thus, the decision taken by the Department to apply the revised ratio of 13:2;1
prospectively has been ratified by Hon’ble Supreme Court
Whereas, it is not true that the decision taken by the
Department to apply the revised ratio of 13:2:1 prospectively has been ratified
by the Hon’ble Supreme Court’. In fact I.A. No. 8 filed by the UOI with Prayers
to allow permission to implement the Indian Service (Customs& Central
Excise) Group ‘A’ Recruitment Rules 2012 prospectively was dismissed by
theHon’ble Supreme Court. The orders dated 12th March, 2013 as mentioned above
were in respect of the judgment in Contempt Petitions filed by the Applicants
and it was in that respect the Hon’ble Supreme Court made an observation (
because there is no specific reference to apply the new quota retrospectively
as and when decided. That the word “Retrospectively “ was not used in the
judgment dated 03-08-2011.Though this was suggested to be case of the
interpretation by implication). In the said orders dated 12th March 2013 in
para 5 the Counsel for the UOI submitted that at best it could be said that
according to Petitioners the implementation was not in conformity with the
directions of this court passed on 03-08-2011…………………
Thus, the submissions made by the UOI Counsel itself
suggests that the matter is not yet settled. At every stage even in the said
Contempt Petition as also in Para 2, the Hon’ble Supreme Court in its order
dated 12th March, 2013 has stated “When the above referred Writ Petition and
Civil Appeal were heard this Court did not express any opinion on merits of
their claims and it was left to the Govt. to alter the existing ratio after
considering representations of all the parties concerned. It may be mentioned
herein that no Court would pass an order in a Contempt Petition relating to
subject matter of a Writ Petition and Civil Appeal.
“ FAIR TRIAL “ is the Fundamental right of every
CITIZEN of India and it is possible only by looking into the Merits of the
submissions made by the applicant but unfortunately neither the Courts nor the
UOI is concerned about it as each one is tossing it like a PING PONG game to
the other’s Court thereby allowing the conspirators, criminals and manipulators
laugh at impotency of the so called Constitution of India.
( No reply has been provided in respect of my letter
dt. 07-08-2013 addressed to the Chairperson/ CBEC and copy to others )
(D) Perusal of the letter dt. 29-10-2013 in reply
further shows that there are many acts of commissions & omissions leading
to the reply as received than otherwise. There appears to be misrepresentation
and misguidance leading to the mindless illegality and injustice. I would like
to draw your kind attention to the desideratum (point or matter in dispute to
be solved )for consideration on meritsas under :-
(a)A CONUNDRUM :-There are two similar cases but there
are double standards approach adopted by the Board in looking into the issues.
(i) There was a dispute from 1985 on application and implementation of the
Appraisers recruitment Rules 1961. Initially one interpretation was applied and
implemented and accordingly all ad-hoc posts were Regularized from 1980 onwards
till 1996-1997by orders dated November,2000. Thereafter, another interpretation
was applied and implemented in 2012 and accordingly all Regularized posts were
Re-Regularized from 1980 onwards till 1996-1997 by orders dated February ,2013
i.e.Rules were applied and implemented 25 years retrospectively. (ii)There was
one more dispute arising because of interpretation of the Principle for
determining the Feeder Cadre ratio as laid down in Para 5.1 of the Hon’ble
Supreme Court judgment dated 22-11-1996. Unfortunately, many funny, out of
context arguments which may properly be called as manipulations were given.
Despite this,Hon’ble CAT, BOMBAY initially passed an interim order in the year
1999 that all the promotions would be subject to outcome of the judgment in
O.A. 485 and finally gave a judgment in July 2001 to change the Feeder Cadre
Ratio after having gone into the merit of the issue before it and noncompliance
of it led to filing of application for Contempt of the said Court.
Unfortunately, without commenting on it, the Bombay High Court ousted the
Hon’ble CAT, BOMBAY judgment due to lack of Jurisdiction. It was a simple issue
which could have been decided very soon rather immediately but from May 2003
till June 2011, the UOI did not file its reply. (In fact those who manipulated
and the sufferers, all know the reasons). Whereas, though at the same time UOI
was very cooperative in urgent filing of replies in Appraising matter dispute
and assisted the Appraisers to linger on with the dispute as is understandable
from the noting in file F.No.A 32012/07/2005-AD.II. Due to this uncooperative
attitude for obvious UNETHICAL reasons the matter CA 1198/2005 was ultimately
decided by consent on 03-08-2011 i.e. within two months of filing of reply by
the UOI. The Hon’ble Supreme Court was pleased to decide the CA 1198/2005
amicably by consent and did not go into the merit of the case believing in the
just and fair sense of the UOI. But, now it appears that this consensus
decision was another manipulation by the Pusillanimous people in the Board with
Pusillanimous mindset with an objective to Pulverize the spirit of Law ,Justice
Equity, Conscience, and the Hon’ble Constitution of India by refusing to decide
the issue in dispute on merit. As I had said in my representation that taking
direction from the Court for deciding submissions on merit speaks very low
about the morals and ethics of the UOI.
(b) AN ARCANUM :- Perusal of file noting in File F.No.
A. 32012/07/2005-AD.II in CBEC would reflect the espousal relationship between
the Board and the Appraisers. All the ad-hoc promotions were effected and then
continued beyond permissible period of six months to one year without approval
of the DOPT & UPSC from 1996-1997 till 2005 despite having taken out a
regularization order in November 2000 irrespective of the pending dispute(s) .
Perusal of the said file would make one understand that unique strategy was
invented and conspiracy was hatched then to subvert the due process of Law ,
Justice ,Equity & Conscience by unique manipulation by those who very well know
the working system in the Board and UOI.It was well known to the Board that
earlier when DOPT & Law ministries opinion was taken, the Board though not
willing was asked to honour , respect and implement the Hon’ble Bombay CAT
orders dated July 2011. Thus, a well planned conspiracy was hatched this time
to bypass& circumvent the well known provisions as contained in DOPT Office
Memorandum No. AB-14017/12/87 Estt. (RR)dt. 18-03-1988 viz.;-
Guidelines on framing / Amendment / Relaxation of
Recruitment Rules
Part III -- Guidelines on preparing Schedule &
Notification
A- General Review of Recruitment Rules
Para 3.1.5 The Recruitment Rules should be reviewed
once in every 5 years with a view to effect such changes as are necessary to
bring them in conformity with the changed position, including additions or
reductions in the strength of the lower and higher level posts.
and Para 3.1 in Part II on GUIDELINES ON DEPARMENTAL
PROMOTION COMMITEES inter alia states :- “…………… A vacancy shall be filled in
accordance with the recruitment Rules in force on the date of the vacancy,
unless rules made subsequently have been expressly given retrospective
effect…………….”
Suddenly various cases of Appraisers dispute erupted in
various Central Administrative Tribunals across India and various conflicting
orders were taken in connivance with prompt replies in their matters to
continue with adhocism as much as possible and it was only when in the year
2011 DOPT asked CBEC to take approval from the UPSC that the Board was
compelled to file its Affidavit in reply in June 2011otherwise on all the dates
earlier for hearing before the Hon’ble Supreme Court, oral submissions were
made that Review of the Recruitment Rules are under active consideration. At
the back of it unique , criminal mind strategy hatched by some people was
pursued cunningly. In the file noting sonly the Appraisers dispute was
mentioned to extend adhoc approvals. Whereas, SLP (CIVIL) 7445/2003 converted
into Civil Appeal 1198/2005 was deliberately concealed from the DOPT who, if
informed, as per the policy, advice the Department & ensure that there is
no unnecessary delay on the part of the administrative authorities in pursuing
the matter.
Perusal of the DOPT’s terse note dated 23-04-2005 in
File F.No. A. 32012/07/2005-AD.II in CBEC are an eye opener. It states :- In
accordance with prescribed instructions of this Department( O.M. No,
28036/8/87-Estt D dated 30.3.1988) where an adhoc appointment has been made in
functional exigencies of work, prior approval of DOPT is required if the
arrangement is required to be continued beyond the initial first year. DOPT
considers each case and approves normally for a period of six months where the
circumstances explained justify the continuation of the arrangement. The DOPT
also takes a hard look at the circumstances which are preventing the Department
in not making the regular appointments and where possible, necessary advice is
also given to overcome the situation. It is also ensured that there is no
unnecessary delay on the part of the administrative authorities in pursuing the
matter.
In the case of Department of Revenue, we have generally
observed that the policy instructions of DOPT have not been observed in letter
and spirit in many matters and even where a departure/relaxation of DOPT norms
was considered desirable in specific facts of the case, the Department acted
unilaterally without seeking necessary clearance of DOPT. ………………………………………….. It
is sad that even in this case, the Department has been forced to make a
reference only because of audit objection though these adhoc appointments have
been continuing for long periods without prior approval of DOPT. ………………………………..
(c) AN OMISSION:- I had made a serious point in my
letter dt.01-10-2011 for deciding on a future most probable contentious issue
to be looked into in the right earnest and it was :-
“As the recruitment for the post of Direct Recruit
Appraisers has been stopped, discontinued, the benefit of vacancies available
on such change should be given to all the other feeder cadres for promotion
from Group B to Group A posts. Thus, the ratio for promotion from Group B
proportion of the Appraisers quota (as the quota and post for the Appraisers of
Customs consists of Direct Recruit Appraisers and Promottee Appraisers) to
Group A posts should be divided in two parts with ratio for promotion being
given one time (on account of sanctioned strength of the Promottee Appraisers
of Customs) and not given second time (on account of nil i.e. zero sanctioned
strength or vacant post of the Direct Recruit Appraisers of Customs) i.e., the
ratio for promotion from Group B to Group A posts should be say 13:2:1 and then
next, it should be 13:2:0 ; 13:2:1 ; 13:2:0 and so on from the time of zero
recruitment for the post of Direct Recruit Appraiser. The ratio of 13:2:1 and
then 13:2:0 should be kept on repeating as it would be the proper and fair
justice to all.
Besides, I would like the Board to look into the
issue:- The seniority list of the Appraisers of Customs should be prepared by
showing Promottee Appraiser and then DR Appraiser and if there is no Direct
Recruit Appraiser, then it should be shown as Promottee Appraiser and then no
DR Appraiser (vacant) and so on. The sanctioned strength of the Appraisers of
Customs consists of Promottee Appraisers and DR Appraisers. Whether the
Promottee Appraisers should be recruited/appointed only upto the sanctioned
strength available for the Promottee Appraisers (constituting the 50 % of the
posts for the Appraisers of Customs as per the Appraising recruitment Rules
1988), otherwise by giving Ad hoc promotions beyond such strength would create
problems in future which DOPT guidelines require to be avoided. As, such
promoted officers later on try to get regularized against such ad hoc promotions
and thus would try to get undue benefits as compared to their counterpart
officers in the Service and create further controversies and problems in
future. Hope that the points mentioned above would be duly looked into and
implemented with just and fair representation please.”
(E) From the facts of the case as mentioned above
vis-à-vis the letter in reply dt. 29-10-2013 it is obvious that in spite of the
directions of the Hon’ble supreme Court of india in its orders dated 11-07-2013
to consider the submissions on merit and also in view of the fact that
initially it is the primary responsibility of the UOI to respect merit as it is
UOI’s duties and responsibilities and thereafter the Courts can examine the
violations, non implementations, mala fide implementation etc. of
provisions,regulations and law ,if any.
I once again request that the issue under
representation should be decided on merit (which otherwise would amount to
Contempt of the Hon’ble Supreme Court of India’s orders dated 11-07-2013 ) by
passing point wise and issue wise substantive / speaking order at the earliest
within 10 days of the receipt of this letter.
Thanking You,
Yours Faithfully.
( S P DUDEJA )
Supdt. Of Customs ( Prev. ) Copy to :- 1)Chairperson/
CBEC –for relook into the submissions
2) Secretary/ DOPT – With a request to ensure
compliance of various
DOPT ORDERS by the CBEC
