COUNTER TO BE FILED IN CAT IN PARITY CASE.
1. There arises no question of dismissing the case on the ground of delay. The condonation of delay has been filed on valid ground for the sake of justice to the applicant. It is neither misconceived nor non-maintainable. Rather the applicant should have been granted the ex-parte relief when none of the respondents liked to appear in contemptible manner on earlier hearings giving no respect to the notice of the Hon’ble Tribunal.
2. The respondents are opposing the application only for the sake of opposition without having any ground. The application is noway misconceived and is duly maintainable.
3. The application is duly and legally maintainable.
4. All the facts, figures and averments in the ‘List of Date’ are true and correct to the best of the knowledge & belief of the applicant.
Details of application
A. The ratio of 13:2:1 is very correctly has been fixed arbitrarily against the guidelines of DOPT. This ratio will noway be able to grant ‘just & fair representation’ to the Central Excise category because the category already ahead will remain always ahead even if 1 vacancy/post out of even millions vacancies is given to it and senior officers will always be headed by the juniors after common entry into same cadre which is the basic question of law raised by the applicant. Para 2.2.2 of seniority instructions under DoP&T’s O.M. No.20011/1/2008-Estt.(D) Dated 11th November 2010 very clearly says “ Where promotions to a grade/post are made from more than one grade owing to a small number of posts, it would be required to prepare a combined eligibility list of the candidates from various feeder grades with due regard to the inter-se seniority of the candidates of various feeder grades.” Thus, in such case, fixing of any ratio is arbitrary because the number of promotional posts meant for Central Excise category available is even less than 4%. Due to this reason and gross injustice, the common entry counterparts of the applicant category are retiring in PB4 while applicants are retiring in PB2 and are also forced to work under their juniors. The Hon’ble Supreme Court never said to fix the ratio on the basis of the regular sanctioned strength of the three concerned feeder grades but it was directed to revise/amend the recruitment rules for the ‘just & fair’ representation of each category. The ‘just & fair’ representation is not possible until the officers from each category represent each promotional post in proportion of their strength in simple arithmetic manner. The CBEC has also already admitted this discrimination and gross injustice under the minutes of its Board meeting dated 12.01.11 and 18.02.11 also saying that the change of ratio would not be able to undo the injustice. Moreover, they have mentioned a ratio of 15:2:1 instead of 13:2:1 in the above minutes. So, the applicants have every cause of action and their application is duly maintainable on the alone ground of the senior being headed by the junior.
B. The representation/s of the concerned applicant Association was/were noway considered as this Association never represented asking for the ratio formula. No speaking order was passed by the respondents disposing of the representations of the concerned applicant Association. Thus, the para is noway misconceived.
C. Three Gazetted Executive grades are noway distinct from each other. All are doing same type of work of revenue collection. Superintendents of Customs and Appraisers are doing it at Customs side while the Superintendents of Central Excise are doing it in all of the three streams, i.e., Central Excise, Service Tax and Customs. More than 70% of Land Customs work is also being looked after by the Superintendents of Central Excise. (Airport policy). The Superintendents of Central Excise are also working as the Appraisers (orders) and
Superintendents of Customs (Dry ports etc.). The division of Gazetted and Non-gazetted grades into zonal/Commissionerstae based cadres is also the one of the reasons of disparity in promotions (as admitted by the respondents). These disparities will automatically removed, if all the officers, i.e., Inspectors of Central Excise & Land Customs and Inspectors (Examiners & Preventive Officers) of Customs, belonging to same cadre of Inspector recruited through common process in the same organisation of CBEC under the same Department of Revenue in the same Ministry of Finance. It is the admitted fact by the CBEC itself in the Board meeting of 21.01.11 & 18.02.11 that the Examiner of 1992 became Asstt. Commissioner in October, 10 while Inspector of 1975 still waiting to become Asstt. Commissioner. It had also been admitted that Examiners are reaching the level of Additional Commissioner (5 promotions) while the most of the Inspectors of Central Excise retiring after only one promotion. This is the reason that the applicants filed this application to bring all the Inspectors of Central Excise, Examiners & Preventive Officers of same year to same level of promotion. The zonal recruitment based on zonal cadres being found faulty, the Hon’ble Supreme Court directed the CBEC in the year 1996 to make the recruitment on all India level under all India merit list.
D. Nothing emotional has been based by the applicants. The submissions made by the applicants are based on facts and law raising the question of law whether a senior officer having three stream expertise recruited in the same cadre through same recruitment process should be forced to work under a junior with single stream expertise.
2.
3. The OA is noway time barred.
4. Facts of the case:
A.
B. All the three categories belong to same cadre subdivided by the CBEC in very discriminatory manner without any justification resulting into discriminatory rate of promotion for one and very advantageous rate for other who is heading former after a time gap particularly after being remerged at the group ‘A’ entry level. The merger at group ‘A’ entry level again substantiate that all of three belong to a single cadre. In the recruitment rules also, all of three are mentioned as Inspector without differentiation in their nature of job.
C.
D. Even the Zonal recruitment being found faulty, it was stopped by the orders of Supreme Court. As far as merit is concerned, the Inspectors of Central Excise were being placed on top while the Examiners were being placed at the bottom.
E. Duties and responsibilities of all of three categories include collection of Customs duty. Inspector of Central Excise also perform the duties relating to the collection of Central Excise duty and Service Tax. Thus, they have multi-expertise capabilities and abilities. The Examiners and Preventive Officers have no work experience of Central Excise and Service Tax work. The Examiners head their senior of Central Excise and Service Tax even by 17 years after entry into group ‘A’ despite of having no working knowledge of Central Excise and Service Tax. Thus, the Examiners can’t stand even a bit in expertise before the Inspectors of Central Excise.
F.
G. In the past, one all India merit list was also being published by the SSC in which Central Excise Inspectors were being placed on top and Examiners at bottom. Thus, it is clear that the Central Excise Inspectors kept occupying the top merit instead of Preventive Officers and Examiners. The Preventive Officers were, however, also being placed above the Examiners in the merit. The respondents may kindly be asked the past records when the Examiners were being placed on top in the recruitment merit.
H.
I. Very strange reply has been given by the respondents. Their own records tell that Sh. H. K. Sharma is posted in Customs wing of Delhi Commissionerate now. His factual details are very well available in his service book places with the concerned DDO. This reply merely shows the grossly non-serious attitude of the respondent towards the notice of the Hon’ble CAT.
J.
K. The Inspector of Central Excise, Preventive Officer and Examiner are not the different cadres but are only different categories belonging to the same cadre of Inspector. The single cadre has been divided/trifurcated since very initially into three categories by CBEC as per their whims & wills without any justification, reasoning and application of mind. They also have created different recruitment rules for these three categories belonging to single cadre without application of mind. Their single cadre character is again evidenced by the re-merger at group ‘A’ entry level of Asstt. Commissioner discriminating one and benefitting other on the cost of former.
L. The promotional posts of above three categories also belong to same grade as Superintendents of Central Excise are also working as Superintendents of Customs and Appraisers. Further merger of all of these three categories at Asstt. Commissioner level is also a strong evidence that these belong to a single grade. Thus, this single grade has also been trifurcated by CBEC in an arbitrary manner to benefit a particular categories to the reasons well known only to them.
M. Admitted promotion from three group ‘B’ gazetted executive categories, i.e., Superintendent of Central Excise, Superintendents of Customs (P) and Appraisers, (belonging to same grade of group ‘B’ gazetted) to single grade of Asstt. Commissioner further substantiate that not only the Superintendent of Central Excise, Superintendents of Customs (P) and Appraisers belong to a single grade but also the Inspector of Central Excise, Preventive Officer and Examiner belong to the single cadre of inspector as also depicted in their recruitment rules.
N.
O.
P. The Board has never tried to alleviate the stagnation of stagnated categories. The respondents may kindly produce the records showing their efforts to remove/alleviate the stagnation of these categories. The Board always tried to alleviate the stagnation of non-stagnated categories whether belonging to Ministerial or IRS class. Presently, the scenario is that Sepoys, LDC’s, UDC’s, Tax Assistants, Senior Tax Assistants etc. are also retiring as Superintendents after getting many promotions and the Inspectors are also retiring as Superintendents after getting only one promotion barring 1%. Group ‘D’ officers, Ministerial officers, Examiners etc. are getting 5 to 6 promotions whereas IRS officers are getting upto 7 promotions and Membership or Chairmanship of any authority or Commission after retirement. Thus, CBEC has always been trying to alleviate the stagnation of the categories already getting 4 to 7 promotions instead of the category retiring only after one promotion. In the last cadre restructuring, the IRS officers were granted parity with the intra-departmental counterparts of CBTD and in the ongoing cadre restructuring, they have been proposed parity with other better placed inter-departmental counterparts of group ‘A’ cadres to promote their Asstt. Commissioner to the post of Commissioner within 17 years of qualifying service. But no such parity has even been thought for the officers recruited as Inspectors even with their intra-organisational counterparts, i.e., Examiners. Actually, these officers should have also been granted parity not only with intra-organisational and intra-departmental (CBDT) counterparts but also with other better placed inter-departmental counterparts including CSS etc. The respondents are worried to implement the guidelines relating to IRS officers but not worried at all to implement the guidelines in r/o the officers recruited as Inspector. OM No.
AB-14017/61/2008-Estt.(RR) dt. 24.03.09 of DOPT clearly says that the promotion of Inspector grade officers to the grade of Joint Commissioner, Addl. Commissioner and Commissioner respectively should be made within 12, 17 and 20 years. The respondents have themselves admitted under this para that the stagnation of the applicants would only be reduced to a certain extent by the ongoing cadre restructuring. The respondents have also admitted in the Board meetings of 12.01.11 and 18.02.11 that the ongoing cadre restructuring will also not be sufficient to remove the stagnation of these officers. The respondents may kindly be asked to confirm whether the ongoing cadre restructuring would also be sufficient to grant the above mentioned grades to the officers as per the guidelines. The respondents recommended to the CPC the time scale after every 7 years but they did nothing to that effect for the applicants in cadre restructuring which was a certain opportunity for the same, if the intention and approach of the respondents were honest and they were really willing to do something for the applicants. Only 1% more officers belonging to the applicant category are expected to touch the group ‘A’ as a result of so called cadre restructuring. Stagnation removal never means that a few officers should merely enter the lowest group ‘A’ post but it means that the officers should reach the higher level of promotions within qualifying service. There are clear cut guidelines that of DOPT that the cadre restructuring should take care of the stagnated categories instead of non-stagnated categories and it should happen after every 5 years but the respondents are not following the same. Only one cadre restructuring has happened in the history of CBEC in 2002 caring for IRS officers only granting them parity with their counterparts of CBDT. The ongoing cadre restructuring was started in 2006 and is still pending even after 7 years of its start while one more cadre restructuring should have happened during this period as per the guidelines. Even after 2002, two more cadre restructuring should have happened and third one started.
Q. The averment of the respondents is quite contradictory. On one hand, they have compared IRS officers of CBEC with the cadre of CBDT and also other better placed group ‘A’ cadres and granted them parity. On the other hand, they same thing is being denied to the applicants in discriminatory manner. The respondents can’t and shouldn’t adopt double standards in the matter, something the most beneficial to IRS officers and something the worst for the applicants.
R & S. It is reiterated that the representations received from the applicant Association were never examined as no action has been taken on any of the representations. Even the respondents didn’t supply the requisite information under RTI Act to the applicant regarding date of the disposal of the representations despite of the appeal.
T. The respondents never strived to improve the promotional avenues of The Inspectors and Superintendents. In cadre restructuring, they even didn’t try to implement their own decision of granting time scale after every 7 years as recommended to the CPC. The seniors of one category are forced to work juniors of other category due to their biased approach. They have created the posts in higher pay scales for IRS officers in cadre restructuring but not implementing the recommendations of higher pay scale made by the CPC for the Superintendents of Central Excise under para 7.15.24. They are also not implementing their own letter F. No. A-26017/44/94-Ad II(A) dt. 08.03.95 issued by their Deputy Secretary named Sh. Dharmvir Gupta in r/o grant of arrears of pay to the Inspectors of Central Excise. The always deny everything to the applicants on one pretext or other sometimes saying that not recommended by the Commission or Committee or saying that not accepted, even if recommended by expert body. They may be asked what they have done for the applicants in last 2 or 3 decades, if they are claiming that they are continuously striving to improve the promotional avenues of the applicants.
U.
V. The representations of the applicant Association were not considered at all. The recruitment rules revised/amended by the respondents will noway give the just and fair representation to the applicants as directed by the Hon’ble Supreme Court. The arbitrariness of the respondents is well evident from the fact that the said ratio was admitted by them as 15:2:1 in the CBEC Board meetings of 12.01.11 and 18.02.11 whereas it has also been changed them arbitrarily to 13:2:1. It is, however, different question whether this ratio even of 15:2:1 is correct or incorrect and also whether the ratio formula should be imposed on the applicants despite of the number of promotional vacancies being too less.
W. The qualifying service as per OM No. AB-14017/61/2008-Estt.(RR) dt. 24.03.09 of DOPT should be two years for promotion to the post of Asstt. Commissioner from Superintendent which has again arbitrarily been mentioned as three years by the respondents. The respondents have also not disclosed the name of the advance stage.
X. The CBEC never strived to do away with the disparity in promotional avenues of three non-gazetted executive categories of Inspector, Examiner and Preventive Officer due to which the senior officers are forced to work under the juniors. The arbitrary and discriminative treatment is also evident from the fact that the qualifying service for next promotion from the post of Examiner has been fixed as 3 years while it is 8 years in the case of Superintendents. As far as the permission of DOPT is concerned, DOPT communications issued vide D.O.No.5/26/2010-CS.II(A) Dt. 06.10.10, No. 19/1/2008-CS.I(P) Dt. 20.07.10, No. 20/51/2009-CS.II Dt. 27.01.11, No.35034/9/2010-Estt.(D) Dt. 10.02.11, OM No. 35034/9/2010-Estt. (D) Dt. 10.02.11 etc. stipulating very clearly that the cadre restructuring should be viewed to mitigate the stagnation of the stagnated employees. If posts can’t be created, the promotions may be granted on in-situ basis requiring no creation of posts. As the last option, even time scales may be granted after completion of qualifying service in consonance of OM No. AB-14017/61/2008-Estt.(RR) dt. 24.03.09 of DOPT.
Y. It is again arbitrary on the part of the respondents that the in situ promotion scheme to promote the officer as Asstt. Commissioner after 20 years of service and as Deputy Commissioner after 25 years of service was kept in abeyance despite of the approval of Board. It is also not understood how any individual authority can keep the scheme in abeyance even after the approval by the Board. How the re-fixation of the ratio was became the best option despite of it already being rejected in the same Board meeting in which in-situ promotion scheme was approved? The Hon’ble Supreme Court never directed that the ratio formula should be inducted in the recruitment rules. This decision to keep the in-situ promotion scheme in abeyance has no relation with the Supreme Court judgement and is completely arbitrary with the intention not to give any benefit to the officers.
Z. It has been admitted by the respondents that revision of promotion quota would not reduce the stagnation. It is not understood why the revision in promotion quota was given preference over in-situ promotion scheme and why the recruitment rules were not revised for the sake of equity despite of the affidavit filed by the respondents to that effect. As far as restructuring is concerned, it has already been submitted that it would enable only 2% of the officers (joining as Inspector) to enter junior group ‘A’ at the fag end of the career without having any effect on their stagnation and without giving them opportunity to reach higher levels at par with their common entry counterparts. Not only it, the senior officers of one category will continue to work under their juniors of another category till ratio formula is applicable. The respondents may kindly be asked to disclose their steps/scheme (if any) to undo this injustice. They should calculate which year Examiner would attain what level and which year Inspector what level after cadre restructuring.
ZA. The respondents should produce the copies of the speaking orders in r/o each representation of the applicant Association, if they have really considered the same.
ZB. The all of the representations of the applicant Association were ignored as no action in consonance of the representations is visible anywhere. On the other hand, the representation of one of the categories was duly accepted and the ratio was changed from admitted 15:2:1 to 13:2:1 due the reasons best known only to the respondents.
ZC. It is not understood how a rejected option of ratio became the best and how it would achieve parity in comparison to the categories who are already ahead of the applicant category. Parity will only be established when no senior of one category is forced to work under no junior of another category. It is a simple mathematical formula that a category already ahead would always remain ahead, even if a single post/vacancy is given to that even out of billion posts/vacancies. The respondents have quoted wrong guidelines of DOPT. These guidelines are applicable only when the number of promotional posts/vacancies are sufficient and the feeder grade officers don’t belong to same cadre and same organisation. When number of promotional posts/vacancies is too less (only 1% in the case of applicants), these guidelines are never applied as already submitted in the para A above under details of application.
ZD. That the representations of the applicant Association have not been considered is also evident from the arbitrary fixation of ratio paying also no heed to para 2.2.2 of seniority instructions under DoP&T’s O.M. No.20011/1/2008-Estt.(D) Dated 11th November 2010.
ZE.
Grounds
Para i. It is reiterated that the representations of the applicants were never considered.
Para ii. The said ratio is noway able to grant the “just and fair” representation to the applicant category. The just & fair representation is simple mathematical representation which is never possible until the officers belonging to each category make their mathematical representation at each level of promotion upto the top in proportion of their mathematical strength. The Hon’ble Supreme court never directed to formulate any ratio formula but said to amend/revise the recruitment rules including altering of ratio to attain just and fair representation of each category. Supreme court also cobidered them different categories instead of different cadres.
Para iii & iv.
Para v & vi. It is not understood how an individual authority can change the full Board decision. It is really arbitrary and high-handed because this scheme was approved by the Board independent of cadre restructuring or any other measure.
Para vii. The respondents may kindly be asked whether the proposed rules would be able to grant the parity in promotions and no senior of one category would work under the junior of another category.
Para viii. It has already been submitted and also admitted by the respondents in their Board meeting that the ongoing cadre restructuring would also be not able to remove the stagnation of applicants. The removal of stagnation is never meant to enter a few a few officers into junior group ‘A’ without reaching higher levels particularly when the other counterparts are retiring at PB4 levels.
Basic feeder classes/groups/streans
1 to 3.
Sub paras i-xxii: Only having basic knowledge or passing basic examination doesn’t make any junior expert than senior. Basic knowledge or passing of basic examination can never be compared with more than decade long experience. The respondents have also made a false statement saying that the Inspectors of 1992-93 have been promoted to group ‘A’ which is
contemptible. They may be asked to provide the names of such officers. The reality is that the Examiner of 1992 has already entered group ‘A’ in October. 10 as admitted by them in their Board meeting of 12.01.11. They have admitted the stagnation of Preventive Officers under this para of their reply which also required to be removed and the only way to remove this stagnation is to bring all the Inspectors, Examiners and Preventive Officers of same year at same level of promotion as was also admitted by them on 18.01.11 during the presentation of cadre restructuring.
Para 6 & 7:
Para 8: (relief sought) It is very well evident from the above submissions that the Central Board of Excise and Customs has never tried to ameliorate the problem of acute stagnation in the group ‘B’ executive grade. The CBEC has not acted till date on any of the points presented by them on 18.01.11 during the presentation on the ongoing cadre restructuring. The O. A. Contains no factually incorrect information as per the best knowledge and belief of the applicants. However, the respondents have filed many factually incorrect information in their reply. The O. A. Has every merit and the applicants deserve well the reliefs sought by them.
Para 9.
Para 10 to 11.
Additional grounds
13. The reply filed by the respondents is arbitrary, illegal, misconceived, uncalled for, not maintainable and without application of mind. The O. A. Has all merits and the applicants deserve all the reliefs sought by them. The respondents deserves very heavy cost in favour of the applicants on account of frivolous reply filed by them.
1. There arises no question of dismissing the case on the ground of delay. The condonation of delay has been filed on valid ground for the sake of justice to the applicant. It is neither misconceived nor non-maintainable. Rather the applicant should have been granted the ex-parte relief when none of the respondents liked to appear in contemptible manner on earlier hearings giving no respect to the notice of the Hon’ble Tribunal.
2. The respondents are opposing the application only for the sake of opposition without having any ground. The application is noway misconceived and is duly maintainable.
3. The application is duly and legally maintainable.
4. All the facts, figures and averments in the ‘List of Date’ are true and correct to the best of the knowledge & belief of the applicant.
Details of application
A. The ratio of 13:2:1 is very correctly has been fixed arbitrarily against the guidelines of DOPT. This ratio will noway be able to grant ‘just & fair representation’ to the Central Excise category because the category already ahead will remain always ahead even if 1 vacancy/post out of even millions vacancies is given to it and senior officers will always be headed by the juniors after common entry into same cadre which is the basic question of law raised by the applicant. Para 2.2.2 of seniority instructions under DoP&T’s O.M. No.20011/1/2008-Estt.(D) Dated 11th November 2010 very clearly says “ Where promotions to a grade/post are made from more than one grade owing to a small number of posts, it would be required to prepare a combined eligibility list of the candidates from various feeder grades with due regard to the inter-se seniority of the candidates of various feeder grades.” Thus, in such case, fixing of any ratio is arbitrary because the number of promotional posts meant for Central Excise category available is even less than 4%. Due to this reason and gross injustice, the common entry counterparts of the applicant category are retiring in PB4 while applicants are retiring in PB2 and are also forced to work under their juniors. The Hon’ble Supreme Court never said to fix the ratio on the basis of the regular sanctioned strength of the three concerned feeder grades but it was directed to revise/amend the recruitment rules for the ‘just & fair’ representation of each category. The ‘just & fair’ representation is not possible until the officers from each category represent each promotional post in proportion of their strength in simple arithmetic manner. The CBEC has also already admitted this discrimination and gross injustice under the minutes of its Board meeting dated 12.01.11 and 18.02.11 also saying that the change of ratio would not be able to undo the injustice. Moreover, they have mentioned a ratio of 15:2:1 instead of 13:2:1 in the above minutes. So, the applicants have every cause of action and their application is duly maintainable on the alone ground of the senior being headed by the junior.
B. The representation/s of the concerned applicant Association was/were noway considered as this Association never represented asking for the ratio formula. No speaking order was passed by the respondents disposing of the representations of the concerned applicant Association. Thus, the para is noway misconceived.
C. Three Gazetted Executive grades are noway distinct from each other. All are doing same type of work of revenue collection. Superintendents of Customs and Appraisers are doing it at Customs side while the Superintendents of Central Excise are doing it in all of the three streams, i.e., Central Excise, Service Tax and Customs. More than 70% of Land Customs work is also being looked after by the Superintendents of Central Excise. (Airport policy). The Superintendents of Central Excise are also working as the Appraisers (orders) and
Superintendents of Customs (Dry ports etc.). The division of Gazetted and Non-gazetted grades into zonal/Commissionerstae based cadres is also the one of the reasons of disparity in promotions (as admitted by the respondents). These disparities will automatically removed, if all the officers, i.e., Inspectors of Central Excise & Land Customs and Inspectors (Examiners & Preventive Officers) of Customs, belonging to same cadre of Inspector recruited through common process in the same organisation of CBEC under the same Department of Revenue in the same Ministry of Finance. It is the admitted fact by the CBEC itself in the Board meeting of 21.01.11 & 18.02.11 that the Examiner of 1992 became Asstt. Commissioner in October, 10 while Inspector of 1975 still waiting to become Asstt. Commissioner. It had also been admitted that Examiners are reaching the level of Additional Commissioner (5 promotions) while the most of the Inspectors of Central Excise retiring after only one promotion. This is the reason that the applicants filed this application to bring all the Inspectors of Central Excise, Examiners & Preventive Officers of same year to same level of promotion. The zonal recruitment based on zonal cadres being found faulty, the Hon’ble Supreme Court directed the CBEC in the year 1996 to make the recruitment on all India level under all India merit list.
D. Nothing emotional has been based by the applicants. The submissions made by the applicants are based on facts and law raising the question of law whether a senior officer having three stream expertise recruited in the same cadre through same recruitment process should be forced to work under a junior with single stream expertise.
2.
3. The OA is noway time barred.
4. Facts of the case:
A.
B. All the three categories belong to same cadre subdivided by the CBEC in very discriminatory manner without any justification resulting into discriminatory rate of promotion for one and very advantageous rate for other who is heading former after a time gap particularly after being remerged at the group ‘A’ entry level. The merger at group ‘A’ entry level again substantiate that all of three belong to a single cadre. In the recruitment rules also, all of three are mentioned as Inspector without differentiation in their nature of job.
C.
D. Even the Zonal recruitment being found faulty, it was stopped by the orders of Supreme Court. As far as merit is concerned, the Inspectors of Central Excise were being placed on top while the Examiners were being placed at the bottom.
E. Duties and responsibilities of all of three categories include collection of Customs duty. Inspector of Central Excise also perform the duties relating to the collection of Central Excise duty and Service Tax. Thus, they have multi-expertise capabilities and abilities. The Examiners and Preventive Officers have no work experience of Central Excise and Service Tax work. The Examiners head their senior of Central Excise and Service Tax even by 17 years after entry into group ‘A’ despite of having no working knowledge of Central Excise and Service Tax. Thus, the Examiners can’t stand even a bit in expertise before the Inspectors of Central Excise.
F.
G. In the past, one all India merit list was also being published by the SSC in which Central Excise Inspectors were being placed on top and Examiners at bottom. Thus, it is clear that the Central Excise Inspectors kept occupying the top merit instead of Preventive Officers and Examiners. The Preventive Officers were, however, also being placed above the Examiners in the merit. The respondents may kindly be asked the past records when the Examiners were being placed on top in the recruitment merit.
H.
I. Very strange reply has been given by the respondents. Their own records tell that Sh. H. K. Sharma is posted in Customs wing of Delhi Commissionerate now. His factual details are very well available in his service book places with the concerned DDO. This reply merely shows the grossly non-serious attitude of the respondent towards the notice of the Hon’ble CAT.
J.
K. The Inspector of Central Excise, Preventive Officer and Examiner are not the different cadres but are only different categories belonging to the same cadre of Inspector. The single cadre has been divided/trifurcated since very initially into three categories by CBEC as per their whims & wills without any justification, reasoning and application of mind. They also have created different recruitment rules for these three categories belonging to single cadre without application of mind. Their single cadre character is again evidenced by the re-merger at group ‘A’ entry level of Asstt. Commissioner discriminating one and benefitting other on the cost of former.
L. The promotional posts of above three categories also belong to same grade as Superintendents of Central Excise are also working as Superintendents of Customs and Appraisers. Further merger of all of these three categories at Asstt. Commissioner level is also a strong evidence that these belong to a single grade. Thus, this single grade has also been trifurcated by CBEC in an arbitrary manner to benefit a particular categories to the reasons well known only to them.
M. Admitted promotion from three group ‘B’ gazetted executive categories, i.e., Superintendent of Central Excise, Superintendents of Customs (P) and Appraisers, (belonging to same grade of group ‘B’ gazetted) to single grade of Asstt. Commissioner further substantiate that not only the Superintendent of Central Excise, Superintendents of Customs (P) and Appraisers belong to a single grade but also the Inspector of Central Excise, Preventive Officer and Examiner belong to the single cadre of inspector as also depicted in their recruitment rules.
N.
O.
P. The Board has never tried to alleviate the stagnation of stagnated categories. The respondents may kindly produce the records showing their efforts to remove/alleviate the stagnation of these categories. The Board always tried to alleviate the stagnation of non-stagnated categories whether belonging to Ministerial or IRS class. Presently, the scenario is that Sepoys, LDC’s, UDC’s, Tax Assistants, Senior Tax Assistants etc. are also retiring as Superintendents after getting many promotions and the Inspectors are also retiring as Superintendents after getting only one promotion barring 1%. Group ‘D’ officers, Ministerial officers, Examiners etc. are getting 5 to 6 promotions whereas IRS officers are getting upto 7 promotions and Membership or Chairmanship of any authority or Commission after retirement. Thus, CBEC has always been trying to alleviate the stagnation of the categories already getting 4 to 7 promotions instead of the category retiring only after one promotion. In the last cadre restructuring, the IRS officers were granted parity with the intra-departmental counterparts of CBTD and in the ongoing cadre restructuring, they have been proposed parity with other better placed inter-departmental counterparts of group ‘A’ cadres to promote their Asstt. Commissioner to the post of Commissioner within 17 years of qualifying service. But no such parity has even been thought for the officers recruited as Inspectors even with their intra-organisational counterparts, i.e., Examiners. Actually, these officers should have also been granted parity not only with intra-organisational and intra-departmental (CBDT) counterparts but also with other better placed inter-departmental counterparts including CSS etc. The respondents are worried to implement the guidelines relating to IRS officers but not worried at all to implement the guidelines in r/o the officers recruited as Inspector. OM No.
AB-14017/61/2008-Estt.(RR) dt. 24.03.09 of DOPT clearly says that the promotion of Inspector grade officers to the grade of Joint Commissioner, Addl. Commissioner and Commissioner respectively should be made within 12, 17 and 20 years. The respondents have themselves admitted under this para that the stagnation of the applicants would only be reduced to a certain extent by the ongoing cadre restructuring. The respondents have also admitted in the Board meetings of 12.01.11 and 18.02.11 that the ongoing cadre restructuring will also not be sufficient to remove the stagnation of these officers. The respondents may kindly be asked to confirm whether the ongoing cadre restructuring would also be sufficient to grant the above mentioned grades to the officers as per the guidelines. The respondents recommended to the CPC the time scale after every 7 years but they did nothing to that effect for the applicants in cadre restructuring which was a certain opportunity for the same, if the intention and approach of the respondents were honest and they were really willing to do something for the applicants. Only 1% more officers belonging to the applicant category are expected to touch the group ‘A’ as a result of so called cadre restructuring. Stagnation removal never means that a few officers should merely enter the lowest group ‘A’ post but it means that the officers should reach the higher level of promotions within qualifying service. There are clear cut guidelines that of DOPT that the cadre restructuring should take care of the stagnated categories instead of non-stagnated categories and it should happen after every 5 years but the respondents are not following the same. Only one cadre restructuring has happened in the history of CBEC in 2002 caring for IRS officers only granting them parity with their counterparts of CBDT. The ongoing cadre restructuring was started in 2006 and is still pending even after 7 years of its start while one more cadre restructuring should have happened during this period as per the guidelines. Even after 2002, two more cadre restructuring should have happened and third one started.
Q. The averment of the respondents is quite contradictory. On one hand, they have compared IRS officers of CBEC with the cadre of CBDT and also other better placed group ‘A’ cadres and granted them parity. On the other hand, they same thing is being denied to the applicants in discriminatory manner. The respondents can’t and shouldn’t adopt double standards in the matter, something the most beneficial to IRS officers and something the worst for the applicants.
R & S. It is reiterated that the representations received from the applicant Association were never examined as no action has been taken on any of the representations. Even the respondents didn’t supply the requisite information under RTI Act to the applicant regarding date of the disposal of the representations despite of the appeal.
T. The respondents never strived to improve the promotional avenues of The Inspectors and Superintendents. In cadre restructuring, they even didn’t try to implement their own decision of granting time scale after every 7 years as recommended to the CPC. The seniors of one category are forced to work juniors of other category due to their biased approach. They have created the posts in higher pay scales for IRS officers in cadre restructuring but not implementing the recommendations of higher pay scale made by the CPC for the Superintendents of Central Excise under para 7.15.24. They are also not implementing their own letter F. No. A-26017/44/94-Ad II(A) dt. 08.03.95 issued by their Deputy Secretary named Sh. Dharmvir Gupta in r/o grant of arrears of pay to the Inspectors of Central Excise. The always deny everything to the applicants on one pretext or other sometimes saying that not recommended by the Commission or Committee or saying that not accepted, even if recommended by expert body. They may be asked what they have done for the applicants in last 2 or 3 decades, if they are claiming that they are continuously striving to improve the promotional avenues of the applicants.
U.
V. The representations of the applicant Association were not considered at all. The recruitment rules revised/amended by the respondents will noway give the just and fair representation to the applicants as directed by the Hon’ble Supreme Court. The arbitrariness of the respondents is well evident from the fact that the said ratio was admitted by them as 15:2:1 in the CBEC Board meetings of 12.01.11 and 18.02.11 whereas it has also been changed them arbitrarily to 13:2:1. It is, however, different question whether this ratio even of 15:2:1 is correct or incorrect and also whether the ratio formula should be imposed on the applicants despite of the number of promotional vacancies being too less.
W. The qualifying service as per OM No. AB-14017/61/2008-Estt.(RR) dt. 24.03.09 of DOPT should be two years for promotion to the post of Asstt. Commissioner from Superintendent which has again arbitrarily been mentioned as three years by the respondents. The respondents have also not disclosed the name of the advance stage.
X. The CBEC never strived to do away with the disparity in promotional avenues of three non-gazetted executive categories of Inspector, Examiner and Preventive Officer due to which the senior officers are forced to work under the juniors. The arbitrary and discriminative treatment is also evident from the fact that the qualifying service for next promotion from the post of Examiner has been fixed as 3 years while it is 8 years in the case of Superintendents. As far as the permission of DOPT is concerned, DOPT communications issued vide D.O.No.5/26/2010-CS.II(A) Dt. 06.10.10, No. 19/1/2008-CS.I(P) Dt. 20.07.10, No. 20/51/2009-CS.II Dt. 27.01.11, No.35034/9/2010-Estt.(D) Dt. 10.02.11, OM No. 35034/9/2010-Estt. (D) Dt. 10.02.11 etc. stipulating very clearly that the cadre restructuring should be viewed to mitigate the stagnation of the stagnated employees. If posts can’t be created, the promotions may be granted on in-situ basis requiring no creation of posts. As the last option, even time scales may be granted after completion of qualifying service in consonance of OM No. AB-14017/61/2008-Estt.(RR) dt. 24.03.09 of DOPT.
Y. It is again arbitrary on the part of the respondents that the in situ promotion scheme to promote the officer as Asstt. Commissioner after 20 years of service and as Deputy Commissioner after 25 years of service was kept in abeyance despite of the approval of Board. It is also not understood how any individual authority can keep the scheme in abeyance even after the approval by the Board. How the re-fixation of the ratio was became the best option despite of it already being rejected in the same Board meeting in which in-situ promotion scheme was approved? The Hon’ble Supreme Court never directed that the ratio formula should be inducted in the recruitment rules. This decision to keep the in-situ promotion scheme in abeyance has no relation with the Supreme Court judgement and is completely arbitrary with the intention not to give any benefit to the officers.
Z. It has been admitted by the respondents that revision of promotion quota would not reduce the stagnation. It is not understood why the revision in promotion quota was given preference over in-situ promotion scheme and why the recruitment rules were not revised for the sake of equity despite of the affidavit filed by the respondents to that effect. As far as restructuring is concerned, it has already been submitted that it would enable only 2% of the officers (joining as Inspector) to enter junior group ‘A’ at the fag end of the career without having any effect on their stagnation and without giving them opportunity to reach higher levels at par with their common entry counterparts. Not only it, the senior officers of one category will continue to work under their juniors of another category till ratio formula is applicable. The respondents may kindly be asked to disclose their steps/scheme (if any) to undo this injustice. They should calculate which year Examiner would attain what level and which year Inspector what level after cadre restructuring.
ZA. The respondents should produce the copies of the speaking orders in r/o each representation of the applicant Association, if they have really considered the same.
ZB. The all of the representations of the applicant Association were ignored as no action in consonance of the representations is visible anywhere. On the other hand, the representation of one of the categories was duly accepted and the ratio was changed from admitted 15:2:1 to 13:2:1 due the reasons best known only to the respondents.
ZC. It is not understood how a rejected option of ratio became the best and how it would achieve parity in comparison to the categories who are already ahead of the applicant category. Parity will only be established when no senior of one category is forced to work under no junior of another category. It is a simple mathematical formula that a category already ahead would always remain ahead, even if a single post/vacancy is given to that even out of billion posts/vacancies. The respondents have quoted wrong guidelines of DOPT. These guidelines are applicable only when the number of promotional posts/vacancies are sufficient and the feeder grade officers don’t belong to same cadre and same organisation. When number of promotional posts/vacancies is too less (only 1% in the case of applicants), these guidelines are never applied as already submitted in the para A above under details of application.
ZD. That the representations of the applicant Association have not been considered is also evident from the arbitrary fixation of ratio paying also no heed to para 2.2.2 of seniority instructions under DoP&T’s O.M. No.20011/1/2008-Estt.(D) Dated 11th November 2010.
ZE.
Grounds
Para i. It is reiterated that the representations of the applicants were never considered.
Para ii. The said ratio is noway able to grant the “just and fair” representation to the applicant category. The just & fair representation is simple mathematical representation which is never possible until the officers belonging to each category make their mathematical representation at each level of promotion upto the top in proportion of their mathematical strength. The Hon’ble Supreme court never directed to formulate any ratio formula but said to amend/revise the recruitment rules including altering of ratio to attain just and fair representation of each category. Supreme court also cobidered them different categories instead of different cadres.
Para iii & iv.
Para v & vi. It is not understood how an individual authority can change the full Board decision. It is really arbitrary and high-handed because this scheme was approved by the Board independent of cadre restructuring or any other measure.
Para vii. The respondents may kindly be asked whether the proposed rules would be able to grant the parity in promotions and no senior of one category would work under the junior of another category.
Para viii. It has already been submitted and also admitted by the respondents in their Board meeting that the ongoing cadre restructuring would also be not able to remove the stagnation of applicants. The removal of stagnation is never meant to enter a few a few officers into junior group ‘A’ without reaching higher levels particularly when the other counterparts are retiring at PB4 levels.
Basic feeder classes/groups/streans
1 to 3.
Sub paras i-xxii: Only having basic knowledge or passing basic examination doesn’t make any junior expert than senior. Basic knowledge or passing of basic examination can never be compared with more than decade long experience. The respondents have also made a false statement saying that the Inspectors of 1992-93 have been promoted to group ‘A’ which is
contemptible. They may be asked to provide the names of such officers. The reality is that the Examiner of 1992 has already entered group ‘A’ in October. 10 as admitted by them in their Board meeting of 12.01.11. They have admitted the stagnation of Preventive Officers under this para of their reply which also required to be removed and the only way to remove this stagnation is to bring all the Inspectors, Examiners and Preventive Officers of same year at same level of promotion as was also admitted by them on 18.01.11 during the presentation of cadre restructuring.
Para 6 & 7:
Para 8: (relief sought) It is very well evident from the above submissions that the Central Board of Excise and Customs has never tried to ameliorate the problem of acute stagnation in the group ‘B’ executive grade. The CBEC has not acted till date on any of the points presented by them on 18.01.11 during the presentation on the ongoing cadre restructuring. The O. A. Contains no factually incorrect information as per the best knowledge and belief of the applicants. However, the respondents have filed many factually incorrect information in their reply. The O. A. Has every merit and the applicants deserve well the reliefs sought by them.
Para 9.
Para 10 to 11.
Additional grounds
13. The reply filed by the respondents is arbitrary, illegal, misconceived, uncalled for, not maintainable and without application of mind. The O. A. Has all merits and the applicants deserve all the reliefs sought by them. The respondents deserves very heavy cost in favour of the applicants on account of frivolous reply filed by them.
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