ONE FINAL ATTEMPT TO GET OUR RIGHTS---- Supdt Customs (P) letter to Law makers , given below
To
Sh. …………
The Hon’ble Member of the Parliament/Lok Sabha & Rajya Sabha Parliamentary House, New Delhi
THROUGH PROPER CHANNEL
Respected Sir,
Subject : (i) Failure to protect the Honour & Dignity of the Law, Justice and Constitution of India by the Bureaucracy & Judiciary and
(ii) Constitutional amendment to Article 309- to remove/delete Proviso to the Article 309 of the Constitution of India
(iii)Framing of the Service Rules for All India Central Excise &
Customs Service – reg.
Policy making is the main function of the Legislature under the Hon’ble Constitution of India. So, making Rules, laws including for Service matters is also the Policy making function of the Legislature under Article 309 of the Constitution of India. Under proviso to the Article 309, the said Policy making function, till it is performed by the Legislature is entrusted to the Hon’ble President of India. In framing of the Service Rules under Proviso to the Article 309 of the Constitution of India , Hon’ble President of India is assisted , advised, counselled by the high level officers ( mainly the Bureaucrats ) in the Government.
Article 309 of The Constitution Of India 1949
309. Recruitment and conditions of service of persons serving the Union or a State Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:
Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act
William Shakespeare had said “ If you have tears, prepare to shed them now.” Now, having been grossly aggrieved after grave suffering for myself (and for thousands of other silent, frustrated, depressed and anguished people), I would like to express the disillusionment, heartburn of such large people due to the malaise prevailing in the Preventive Officers of Customs and Central Excise Service affecting their morale and work culture. The main cause of this state of deterioration is that in their entire service span of about 35 to 36 years the Preventive Officers of Customs and Central Excise Inspectors are getting just one promotion whereas, other officers like Examining Officers of Customs having joined in the same service and selected through the same all India combined competitive examination on merit and option basis conducted by the selection body i.e. Staff Selection Commission are getting 4 to 5 promotions in the similar duration of service. More condemnable is the reason that though the Preventive Officers of Customs, Central Excise Inspectors and Examining Officers of Customs having been selected through the same all India combined competitive annual examination on same qualification, merit and option conducted( for the same level Posts under Income tax, Customs and central Excise etc, Services ) by the selection body i.e. Staff Selection Commission and appointed in the same Deptt./Service to the same level different Posts ( by nomenclature only as per the Director DOPM’s note in the file in the year1999) in the Customs and central Excise Service on the basis of merit & option, the Preventive Officers of Customs and Central Excise Inspectors (General, Scheduled Castes & Scheduled Tribe) are compelled to work under the said Examining officers of Customs who were (may be) having lower merit or selected through a later examination( upto 15 to 16 years afterwards) conducted by the selection body i.e. Staff Selection Commission. (Promotions are made as mere simple promotions and not on selection basis or selection post but to the Cadre Posts at different levels in the same Service) We have been fighting for justice as per Rule of Law and Constitution of India for the last over17 years with no tangible results so far due to mala fide (because of the mala fide reasons known to the sufferers) acts of commissions & omissions by the officials sitting in the union of India. Not respecting Rule of Law, Equity, Justice, Dignity & Honour of the President of India and Constitution of India is in reality an act of betrayal and perfidity.
Unfortunately as per our experience, the top Bureaucracy in the Union of India are not guided and influenced by the Article 51 A – (a) & (h) of the Constitution of India and also have not risen to the call of duty , conscience and loyalty to the Government of India to safeguard and protect the spirit and dignity of the Constitution of India except for once in the year 1999 when the then Director, DOPM (probably in the month of August) had made a self speaking elaborate noting in the file, to the best of my knowledge and information, that it is unfair , unjust and also unconstitutional to have separate Cadres of (a) Inspectors of Central Excise (b) Preventive Officers of Customs &( c) Examining Officers of Customs and also to have separate Cadres of (d) ) Superintendents of Central Excise (e) Superintendents of Customs (P) and ( f) Appraisers of Customs in the same Service & hence Cadres at a,b,c and at d,e,f should be merged as one single Cadre at each such level ( just as in the Income Tax Department ). Subsequently, after his transfer, however, no efforts were made though shown to have been made (with dilatory tactics, pre-planned motive & conclusions) without any tangible, legal, justified results so far as the CBEC is perceived to be working true to the proverb “ You pays your money & you take your choice” as it would be obvious from the factual deposition here under:
Present Hierarchy of Posts: ( Posts for the 3 Cadres in question treated as Level I)
Level(I) Group’B’ – Non Gazzetted :- (i)Inspector (Prev. Off. of Customs), (ii)Inspector(Examining Off. of Customs),(iii) Inspector ( of Cental Excise) All selected through the same combined Competitive examination conducted by the Staff Selection Commission
Level(II)Group’B’ Gazzetted :- As Superintendent of Customs or Appraiser of Customs or Superintendent of Central Excise on promotion from the posts of (i)Inspector (Prev. Off. of Customs),(ii)Inspector(Examining Off. of Customs),(iii) Inspector ( of Cental Excise)
Level(III) Group’A’ Asstt. Commr. of Customs & Central Excise on promotion from the posts of Superintendent of Customs or Appraiser of Customs or Superintendent of Central Excise ( As per their share of Quota in Group’A’)
Level(IV)Group’A’ Deputy Commr. of Customs & Central Excise on promotion from post of Group’A’ Asstt. Commr. Of Customs & Central Excise
Level(V) Group’A’ Joint Commr. of Customs & Central Excise on promotion from the post of Group’A’ Deputy Commr. Of Customs & Central Excise
It is said that while framing , laws are derived from common sense and logic and while interpreting, laws are arrived from common sense and logic. Any wrong doing by the Bureaucracy and not correcting such wrongs by the Judiciary undermines the Rule of Law, Justice and the Honour & Dignity of the President of India and Constitution of India. The rule in conformity with the Law as well as the law as understood from the Hon’ble Constitution of India is that any person lower in rank and merit and selected through the same all India combined competitive annual examination conducted on the basis of same qualification, merit and option conducted( for the same level Posts under Income tax, Customs and central Excise etc, Services ) by the selection body i.e. Staff Selection Commission and having been appointed in the same Deptt./Service to the same level different Posts ( by nomenclature only) of the Preventive Officers of Customs, Central Excise Inspectors and Examining Officers of Customs in the Customs and central Excise Service on the basis of merit & option can ever become immediate superior to the other officer higher in rank and merit in the said same all India combined competitive annual examination on same qualification, merit and option conducted( for the same level Posts under Income tax, Customs and central Excise etc, Services ) by the selection body i.e. Staff Selection Commission or selected by the later examination. But the situation in the CBEC is very astounding to move and shake the mind of any sensible person as under:
Category(Selected by the Staff Selection Commission through combined annual examination) Sanctioned strength Promotion to Level II Group’B- (Sanctioned strength) Promotion to ( Group ‘A’) Level III, Level IV, Level V
Inspector (Prev. Off. of Customs), 2056 Promotee Superintendent of Customs(1582) Total Promotees in Group’A’- 19 Not Promoted- Level III (General- year 1976) (Scheduled Caste- year 1980), (Scheduled Tribe-1980)
Inspector(Examining Off. of Customs) 410 Promotee Appraiser of Customs(430) Total Promotees in Group’A’- 152 General –year 1994 promoted to Level III(in 2012) & General- 1982 promoted to Level III (in2002), IV(in2006), V(in 2013)
Inspector ( of Cental Excise)
17750 Promotee Superintendent of Cent. Excise(11525) Total Promotees in Group’A’- 252 Not Promoted-Level III (General- year _ _ _ _) (Scheduled Caste-_ _ _ _)
From the table as above, it is clear and obvious that Preventive Officers- (General- year 1976) (Scheduled Caste- year 1980), (Scheduled Tribe-1980) are not promoted to Level III, whereas, Examining Officers- General –year 1994 are promoted to Level III(in 2012) & General- 1982 promoted to Level III (in2002), IV(in2006), V(in 2013). Thus, by the wrong acts of the Union of India, the Preventive Officers (General, Scheduled Caste and Scheduled Tribe) selected and higher in merit or selected through examinations 14 to 18 years earlier are working as immediate juniors to such Examining Officers lower in the merit or selected through 14 to 18 years later examinations(! ! ! ! ………..! ! !) indicating no respect for the Rule of Law, Justice, Equity and Constitution of India.
How there is let down of the Honour & Dignity of the Law, Justice, Equity and Constitution of India by the Bureaucracy & Judiciary will be clear and obvious after going through my letters dated 01-10-2011, 16-07-2013, 22-07-2013,16-08-2013 and letter dt. 11-11-2013 in reply to letter dt. 29-10-2013 from the Central Board of Excise & Customs enclosed along with this letter.
Great framers of the Constitution of India while framing the Article 309 were under a wrong impression & expected that the top Bureaucrats in free India would be unlike the Colonial Bureaucrats but unfortunately , the attitude of the Bureaucrats, in general, has not changed even now. Instead of showing due respect to the Rule of Law & Justice and also instead of being loyal and faithful to the President of India and the Constitution of India, they act in an awfully irresponsibly manner and unbecoming attitude of the Union of India.
Therefore, this desperate attempt being made now to approach the Hon’ble Parliament of India ( as stated in first part of the Article 309 )to provide justice as per Rule of Law and the Constitution of India. Besides the issue highlighted above, there are other aspects to be looked into like discrimination in the prospects of promotions to officers joining at different levels in the Service Hierarchy that the Bureaucrats take away all the benefits for themselves depriving other lower Cadres of their legitimate rights and interests and Social status. In a Democracy, the legislature works with the commitment and motive “Maximum good of maximum People”. But Indian Bureaucrats work with the motive “all the good for self, self ego & power”. Therefore, it is all the more necessary and important that the legislature should act to restore and protect the Rule of Law, Justice and the Honour & Dignity of the President of India and Constitution of India
Not only in CBEC, but this kind of acts of discrimination, injustice is known to be prevailing in almost all the Government Departments. In view of this, on a serious consideration Article 309 of the Constitution of india should be amended by removing the Proviso to the said Article309 of the Constitution of India.
( Points to deliberate be given a serious thought, to look into, try to know, understand, apply the mind and consider in proper spirit while taking a decision as per Rule of Law and Constitution of India in the Service matter of (i) Supdts. of Central Excise, (ii) Supdts. of Customs and (iii) Appraisers of Customs is enclosed in the Annexure attached to this letter )
Thanking You,
Yours Faithfully,
Enclosures: 7-As above & on page 5 (S P DUDEJA)
Annexure to the letter dated 20-01-2014
Article 309 of The Constitution Of India 1949
309. Recruitment and conditions of service of persons serving the Union or a State Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act
There appears to be no sincere effort by the Union of India and the CBEC(Central Board of Excise & Customs) so far to eliminate disparities in promotion and give employees of all the feeder grades of Group B officers, an equal opportunity for promotion to the Group A level as per the Constitution of India. With a sincere approach, the issue would have been settled over thirteen to fourteen years ago but for the irresponsible behaviour of the Board having no concern for the honour and dignity of the Constitution of India nor for the President of India. The Board people instead shamefully fulfilled their selfish and personal interests. In Jurisprudence it is said “Justified law is derived from Common sense and lawful justice can be arrived from common sense.” As such, by sincere efforts and application of mind with unbiased approach it would be very easy to find a justified, lawful and Constitutional solution to the unreasonably created and unreasonably long pending issue. One should discard the approach like the dog to be faithful to someone who feeds the bone. Without prejudice, bias and favour, it is to submit:-
The Preventive Officers of Customs, Examining Officers of Customs and Inspectors of Central Excise are selected and appointed on the basis of merit and option in the Combined Competitive Examination conducted by a Statutory body i.e. staff Selection Commission. All the three class of Officers are appointed to different Cadres in the same Department/Service in the different Custom Houses and Central Excise Commissionerates in the same level of grade, pay, salary etc. at the time of initial appointment. Having been so appointed, they are all of the comparable class. Similarly, the Direct Recruit Appraisers are appointed at higher grade Post and Cadre on the basis of different Examination conducted by a Statutory body i.e. Union Public service Commission and as such form a separate and different class and are un-comparable to all the three comparable Cadres of Preventive Officers of Customs, Examining Officers of Customs and Inspectors of Central Excise. Preventive Officers of Customs, Examining Officers of Customs and Inspectors of Central Excise are thereafter promoted to the Higher cadre Posts made available in the same Commissionerates one had joined initially. This Policy of having restrained the promotion prospects and keeping promotion Posts confined to the same Commissionerates for officers on initial appointments, amounts to be “ The Policy of Reservation”, while there is no scope for such Policy of Reservation under the Constitution of India. Under Article 16(4) & 16(4A) of the Constitution of India, there is provision for the Schedule Caste /Schedule Tribe only. Having deprived the senior, eligible officers by such a Policy as above in the matters of promotion is an act, not only unjust and unfair but also illegal and unconstitutional . Even otherwise, while interpreting Article 16(4) the Hon’ble Supreme Court of India has held in the matters of policy of Reservation that when a senior gets promoted later on, he regains his seniority on promotion compared to the other officer from the Reserved category who got promotion earlier because of reservation. This position was later on changed by amendments as under Article 16(4A). There is no such provision in the Constitution of India to make rules whereby some get benefitted unduly/ illegally at the cost of others. However, if such situation happens it can and should be rectified immediately in the interest of justice and rule of Law. The principles as laid down in the cases of (i) Union of India versus Virpal Singh dt 30-01-1997); (ii) All India Station Masters Association versus General Manager Central Railway AIR 1962 SC 284 ,(iii) High Court, Calcutta versus AnilKumar Rao AIR 1962 SC 1704, 1963 (1) SCR 437,(iv) Ajit Singh Vrs State of Punjab and (v) by a 9 Judge Bench in Indra Sawhney Vrs Union of India (1992) 3 SCC217 para 845 ; AIR 1993 SC 477 are:
“Inequality of such opportunity for promotion as between citizens holding different posts in the same grade may, therefore, be an infringement of Art.16 of the Constitution of India.”
“Equality of opportunity in the matter of promotion means that all employees holding posts in the same grade shall be equally eligible for being considered in the merit for appointment to the higher grade.”
“There would be no discrimination and there is no violation of Art. 14 & 16 (1) of the Constitution of India where the Quota Rule of recruitment has no connection with the rule of seniority”.
“Even if Schedule Caste/Schedule Tribe candidate is promoted earlier by virtue of rule of reservation/roster than his senior general candidate and the senior general candidate is promoted later to the said higher grade, the general candidate regains his seniority over such earlier promoted Schedule Caste/ Schedule Tribe Candidate. The earlier promotion of the Schedule Caste/Schedule tribe candidate in such a situation does not confer upon him seniority over the general candidate even though the general candidate is promoted later to that category.”
Consequent to this decision of the Apex Court, Art.16 (4A) was inserted by Constitutional Amendments in 1995 and further Constitutional Amendment in the year 2001 to reverse the above decision of the Supreme Court. However, as such, the benefit as mentioned therein is available to Schedule Caste/ Schedule Tribe candidates over general candidates only and not for general over general or Schedule Caste over Schedule Caste or Schedule Tribe over Schedule Tribe.
Thus, no special treatment except as provided under Art. 16(4) &16 (4A) of the Constitution of India can be given to any citizen who are otherwise comparable and form a class. Further, Promotion being a fortuitous situation does not confer any right to such Post or seniority.
The Inspectors of Central Excise, Prev. Officers and Examiners of Customs form a same class and Appraisers of Customs form a separate class. Govt. of India had taken a conscious decision, though not implemented for whatever reasons, by a circular on October 29 1982 (based on the principle that depending on the source of recruitment as such, the seniority among Direct Recruit Appraisers is a comparative seniority and similarly among Promottee Appraisers is also a comparative seniority and both of them being a different class) that the direct recruits and the Promottee Appraisers would be brought on two different lists on All India Service basis and the promotional posts of Assistant Collector of Customs/Central Excise falling in the share of Appraisers will be divided equally between the direct recruits and the promotees. The circular inter alia provided that Promottee Appraisers of all the Custom Houses could be brought on one list on the basis of their continuous length of Service, subject to the order on which they were included in the panel prepared by the Departmental Promotion Committees in the respective Custom Houses. Further, it was provided that the vacancies in the Group A meant for Appraisers would be filled up from the two panels, i.e. one meant for direct recruits and the other for the Promotee Appraisers in the ratio of 1:1, alternative vacancies going to the promotee and direct recruits.
This decision was taken based on the rule that promotion being a fortuitous act does not confer any right to a post or to seniority but since the Direct Recruits and Promotee Appraisers are considered together for promotion even then relative seniority cab also be dispensed with. The recruitment rule provides for percent of Direct and Promotee posts only and if required they can be separated and kept on different footings for further promotions.
The Inspectors namely, (a) The Preventive Officers of Customs,(b) Examining Officers of Customs and (c) Inspectors of Central Excise are comparables and non-detachable as the source of their recruitment to such Posts and appointment thereof is made from a single combined competitive examination conducted by the Staff Selection Commission.
Whatever happens , the basic Principle of Rule of Law as also under the Constitution of India is that everything else being same, any person lower in merit in the same exam or selected through the later examination cannot become immediate superior to such other person having been higher in the merit list in the same exam or selected through an earlier examination conducted by the same recruitment authority such as Staff selection Commission. ( This being applicable for General Vrs General, Schedule Caste Vrs schedule Caste and Schedule Tribe Vrs Schedule Tribe ).
Thus, Base Cadre Senority for the purpose of promotion, as per the present disposition, to the post of Asstt. Commr. Of Customs and Central Excise is the justified means among The Preventive Officers of Customs, Examining Officers of Customs and Inspectors of Central Excise. The Direct Recruit Appraisers being different class and differentiable from The Preventive Officers of Customs, Examining Officers of Customs and Inspectors of Central Excise can be treated differently as per the decision of 1982 of the Govt.
