Mainly following two issues
have been raised recently by certain
members for immediate redressal:
(1) Adhoc promotions pending
since 1997 to 2011 are to be
regularized only through review-DPCs based on :
i. altering
ratio for respective years, on the basis of 'percentage of cadre strengths' of
all 3 feeder categories.
ii. preparing
'extended panel/s', so as to include the serving officers till next month, of
DPC date. &
(2) The Gr-A Recruitment
Rules should provide for a criteria for Promotion of Gr-B officers to the
Grade-VI on the basis of their
"length of service in Gr-B Gazetted ( feeder categories i.e Supdt.CX,
Supdt .Cus & Appraiser) &
non-Gazetted( sub feeder categories i.e Inspector, PO & Examiner) ".
Re point no 1 above-- 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.
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. 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”.
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. 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)
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. Accordingly OA has been filed
by AIACEGEO in CAT Principal Bench to
frame the RRs to maintain base cadre parity in promotion. In several cases Apex
Court has decided that the RRs which are operative on the date of vacancy of post should be applied to grant
promotion. Unless it is decided by any
competent court that the RRs of 2012 is
operative since 1997, it is not possible
to make regularisation since 1997 on the
basis of such revised RRs. Further during 1997 to 2011 around 1800 nos.of post
in the grade of AC were made adhoc. Out of around 1800 nos. around 200 nos were
adjusted during 2005 aginst excess promotions made to Central Excise stream prior to 1997. Out of
around 1600 nos. 1070 nos.got promotion from Central Excise stream in 6.1.2
ratio. If 13.2.1 ratio would be applied
then these nos. are to be increased to 1280 nos. by causing a short fall of 110
nos. If the ratio would be fixed on the basis of 'percentage of cadre
strengths' of all 3 feeder categories on year to year basis, then the short
fall might be around 80 nos. only. If
Promotions would be allowed by preparing
'extended panel/s', so as to include the serving officers till next month, of
DPC date, then either 80 or 110 retired persons might be granted promotions
notionally.We are very much happy that the ratio has been increased to 13.2.1 on the basis of cadre strength. But at present the AC/DC posts have been
increased substantially in Central Excise side in the ensuing CR ,hence if ratio would be fixed on
the basis of the Custom Service Posts and Central Excise Service Posts then
the appropriate ratio would be 21.2.1. Due to our ill luck the ratio has been
fixed to 13.2.1 on the basis of cadre strength before approval of CR.
Re point no 2 above--
The regional disparity in
promotions as existed in Income Tax .The stagnation for Inspector to ITO in
UP(E)-Lucknow, Rajasthan-Jaipur, Bihar-Patna & T.N.&P-Chennai is around
10 Years, whereas the same for W.B.-Kolkata and Orissa-Bhubaneshwar is around 4
Years and average
stagnation for the entire country is around 6 Years.
The above grievance gets compounded for those Inspectors who have joined
the department on the basis of an All India Exam (i.e. Combined Graduate Level
Exam conducted by SSC) and one with higher rank become junior to one with lower
rank, in the higher grade of ITO because of the difference in stagnation level
in their respective regions and at times the allotment of regions is not as per
their choice. Further, as promotion of ITO is to All India cadre of ACIT, such
anomaly not only persists, but is apparent thereby causing untold
frustration. The above grievance is not
imaginary or hypothetical and this can seen from the fact that an General
category Inspector of SSC Exam 1988 from W.B. is JCIT today, whereas such
Inspector from Bihar is promoted as ACIT in 2013. Further such Inspector of SSC
Exam of 1986 & 1987 from Mumbai, TN,
Kerala, Delhi, NWR etc. are still DCIT, whereas their counterparts from W.B.
are JCIT and will be Addl. CIT in 2014 or 2015.
Although, the difference in stagnation is bound to be explained by the
contention that the grades of ‘Inspector’ & ‘ITO’ are not All India Cadre
and the waiting period for promotion in different regions will depend upon the
respective sanctioned number of posts.
The regional
disparity in promotions is existed in Central Excise & Customs, like Income
Tax. Examiners of Customs of 1992 batch have already been promoted
to the rank of AC and after implementation of CR-2013 the Examiners
of 2004 batch will be AC during 2014.
Whereas the Inspectors of Central Excise of 1975 batch are still
Superintendent. Recently Examiners of 1984 batch have been promoted to the rank of JC. Considering the situation AIACEGEO has filed
CAT case for base cadre parity in promotions. If base cadre parity will be granted then
automatically regional disparity will be removed. Accordingly a draft RRs has
been submitted by AIACEGEO before the
RRs committee for considerations.
