CASE FILED BY CUSTOMS PREVENTIVE FEDERATION IN APEX COURT.

CASE FILED BY CUSTOMS PREVENTIVE FEDERATION IN APEX COURT.

I.A.NO. OF 2013 : AN APPLICATION ON BEHALF OF THE APPELLANTS FOR APPROPRIATE ORDER / DIRECTION PURSUANT TO THE ORDER DATED 03.0.82011 PASSED BY THIS HON’BLE COUTR IN CIVIL APPEAL NO.1198 OF 2005

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

I.A. NO.          OF 2013

IN

CIVIL APPEAL NO.1198 OF 2005

IN THE MATTER OF :

S.P DUDEJA & ANOTHER          … Petitioners/Appellants

Versus

Union of India & Ors.                                         … Respondents

AND IN THE MATTER OF :

 I.A.NO.           OF 2013   :  AN APPLICATION  ON BEHALF OF THE APPELLANTS  FOR APPROPRIATE ORDER / DIRECTION  PURSUANT TO THE ORDER DATED 03.0.82011 PASSED BY THIS HON’BLE COUTR IN CIVIL APPEAL NO.1198 OF 2005

PAPER BOOK

(FOR INDEX KINDLY SEE INSIDE)

ADVOCATE FOR THE APPLICANTS/APPELLANTS:                                                                                                                      PARMANAND GAUR

I N D E X

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S.No.                   Particulars                                                         Page Nos.

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1.      An application on behalf of the appellants for

Appropriate Orders/Directions pursuant to the

order dated 03.08.2011 passed by this Hon’ble

Court in Civil Appeal no.1198/2005 with affidavit

in support

2.      ANNEXURE-1

          A true copy of the order dt.03.08.2011 passed by

this Hon'ble Court in C.A.No.1198/05

3.      ANNEXURE:A2

A true copy of the Order dt.10.07.2001 passed by

Ld. CAT, Mumbai in OA No.485/1999 and 556 of 1999        

4.      ANNEXURE-A3

          True copy of the Representation of the Appellant

          No.1 dt.01.10.2011 addressed to Chairman, CBEC

5.      ANNEXURE-A4 (Colly)

i)       True copy of the office order number 124 of 2012

 dated 12^th July, 2012,

ii)      True copy of the Office order number 149/2002

dated 1^st October, 2002,

iii)     True copy of the office order no. 206/2002 dated

10^th December, 2002,

iv)     True copy of the office order No. 61/2003 dated 7^th

April, 2003

6.      ANNEXURE-A5:

A true copy of the order dt.30.03.2012 passed by this

Hon'ble Court in I.A No.8 in C.A.No.1198/05

7.      ANNEXURE-A6

True copy of a chart showing the comparative cadre

strength of 3 feeder categories officials

8.      ANNEXURE-A7

True copy of the Indian revenue service (Customs and

Central Excise) Group ‘A’ Rules, 2012

9.      ANNEXURE-A8

True copy of the order dtd.13.08.1999 passed by Ld.

CAT, Mumbai in OA No.485/1999 and 599/2000

*************************************************************

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

I.A No._______/2013

IN

 CIVIL APPEAL NO.1198/2005

IN THE MATTER OF:

 S P DUDEJA & Another.            …APPELLANTS/APPLICANTS

VERSUS

UNION OF INDIA & OTHERS                      ….RESPONDENTS

AND

IN THE MATTER OF:        AN APPLICATION ON BEHALF OF THE APPELLANTS FOR APPROPRIATE ORDER/ DIRECTION PURSUANT TO THE ORDER DATED 03.08.2011 PASSED BY THIS HON’BLE COURT IN CIVIL APPEAL NO.1198/2005

TO

The Hon’ble The Chief Justice of India

And His Hon’ble Companion Judges of

Supreme Court of India.

                                                          The humble application of the Appellants as above-named;

MOST RESPECTFULLY SUBMIT AS UNDER:

1.      That the present Application in the disposed of Civil Appeal No.1198/2005 has been filed seeking appropriate order, directing the Respondent Department to implement the Direction No.4 contained in the order dt.03.08.2011 passed by this Hon’ble Court, since the aforesaid directions are yet to be implemented/carried out by the Respondent department notwithstanding the expiry of more than 19 months.

2.      That this Hon’ble Court vide its order dt.03.08.2011 disposed of the Civil Appeal 1198/2005 arising out of the Special Leave Petition (C) No.7445/2003 filed by the Appellants assailing the final order/judgement of the Hon’ble Bombay High Court dtd. 22.12.2002 in W.P No.1324/2002. The order dtd.03.08.2011 was in the nature of a consent order in as much as this Hon’ble Court in view of the proposal submitted by Respondent Department by way of a reply affidavit, did not express its opinion on the merits of the case which was the subject-matter of the Civil Appeal.

          True copy of the order dt.03.08.2011 passed by this Hon’ble Court in Civil Appeal No.1198/2005 is annexed hereto and marked as ANNEXURE:A1. (Page No.____to___ of the paper Book).

3.      That the impugned order/final judgment dt. 22.12.2002  passed by the Hon’ble Bombay High Court was the off-shoot of a proceeding initiated by the Appellant-Applicant herein before the Ld. Central Administrative Tribunal, Mumbai Bench assailing the provisions of Rule-18 of the Group A recruitment Rules of 1987 ( revised in 1998) prescribing the ratio of 6:1:2 among the 3 categories officials of Group ‘B’ constituting  Feeder Cadre for promotion to the Group ‘A’ post of Assistant Commissioner (Customs & Central Excise) and further seeking the relief of change of the said ratio in view of substantial increase in the cadre strength of Customs Superintendent (Preventive) vis-a-vis the Customs Appraisers in the year 1996 and 1997.

4.      That as a matter of fact it is stated that initiation of the proceedings before the Ld. CAT, Mumbai was in the light of the observations made by this Hon’ble Court in I.A No.6 filed in  Writ Petition (Civil) No.306/1988 vide its order dt. 22.02.1999 which are as follows;

                  

                   “IA No. 6 and IA No.7 are interconnected. IA No.7 is filed for permission to file IA No.6. IA No. 6 is filed by the Superintendents of Customs (P)….. ……..quotas which are fixed can only be altered by a fresh determination of the quota. It will be for the applicants to take such steps as they deem fit if they feel aggrieved about the existing quota, but the filing of this I.A. is not the proper remedy. We are also not prepared to accept that the proposals of the Govt. of India dated 8.6.89 themselves visualized a constant change in the quota from time to time. Such a change, in our view, has to be done by a fresh determination and it is for the applicants to make out a case therefore and take the necessary steps for such modification. ………But  IA No. 6 is dismissed leaving it to the applicants to make out a case for change of the quota and take appropriate steps as the applicants may deem fit. We express no opinion as to the merit of such claim. The above matters are all disposed of as stated above.”

         

          The aforesaid order has been reported in (1999) 3 SCC-

5.      That the Appellants herein filed 2 Applications before the Ld. CAT, Mumbai, which by a detailed and well reasoned order dt.10.07.2001 disposed of the OA No.485 and 556 of 1999 with a direction to the respondent department to consider the grievances of the present Appellants which were prima facie found to be genuine and pass a reasoned and speaking order within a period of 3 months. The operative part of the Ld. Tribunal’s order as aforestated is as follows;

                   “As there is a substantial increase in the cadre strength of Superintendent of customs by more than 127 % while there has been a small increase, i.e. 34% in quota of Appraisers, we feel it just and fair  to consider the  grievance of  Supdt. of Customs and Appraisers within a period of  three months providing them with just and fair opportunity of their representation to the post of Assistant Commissioner of Customs and thereafter to fill the existing vacancies.”

          A true copy of the Order dt.10.07.2001 passed by Ld. CAT, Mumbai in OA No.485/1999 and 556 of 1999 is annexed hereto and marked as ANNEXURE:A2 Page No.____to____ the paper Book).

6.      That the respondent department however, did not take any action as directed by the Ld. Tribunal, thereby compelling the Appellants to file a Petition for initiation of contempt proceeding against the Secretary of the respondent department.  In the meantime the then Joint Secretary (Admn), CBEC vide letter F.No. C-18011/1/2001-Ad-II dated 15^th/17th October 2001 gave the applicant an assurance  stating that “….The Whole matter has been considered in the light of the judgment of the Hon’ble Tribunal. It is found that officials who would have been appointed in the grade of Supdts of Customs (P) against the additional posts as a result of restructuring in 1996 and 1997 are not yet ripe for promotion to Group ‘A’. Need and justification for change in Recruitment Rules and ratio of 6:1:2 can be examined when these officers appointed against upgraded post in 1996-97 become due for promotion…”   However, no notification changing the Recruitment Rule was  issued despite the fact that the Superintendents of Customs (Preventive) of 1996 batch, not only has fallen under the consideration zone for promotion in the year 1999, but they have actually been promoted vide the order F.No. A-32012/28/2007 Ad-II dt 30.01.09. However, the Ld. Tribunal found the office communication dt. 15/17.10.2001 to be not in consonance with the direction passed by it, hence passed the order dt.23.02.2002 directing framing of contempt charges against the contemnors.

7.      That the Contemnor i.e. then Secretary, Department of Revenue, Ministry of Finance assailed the order dt.13.02.2002 before this Hon’ble Court in SLP (Civil) No.6173/2002 and this Hon’ble Court vide order dt. 13/03/2002 dismissed the same with the order “Taken on board. It is not necessary to interfere at this stage. Leave petition is dismissed”.

8.      That on the other hand, the private respondents (Appraisers) to the Civil Appeal against whom there was no direction for framing of contempt charges, challenged the order dt. 13.02.2002 before the Bombay High Court which not only entertained the writ petition but also set aside the order of the Ld. Tribunal vide its order dt.22.11.2002 (Impugned Order/judgement in Civil Appeal No.1198/2005). The High Court even went a step ahead to record its findings on merits of the dispute inter se   parties ousting the jurisdiction of the Ld. Tribunal to entertain the dispute especially with regard to change of ratio and further held that this Hon’ble Court alone can decide the said dispute.

9.      That Appellants assailed the order dt.22.11.2002 of the High Court before this Hon’ble Court in SLP (C) No. 7445/2003 which upon grant of leave, converted to Civil Appeal No.1198/2005.

10.    That the aforesaid Civil Appeal was disposed of vide order dt.03.08.2011 based upon the consensus arrived at between the appearing parties through their respective advocates. Taking judicial notice of one of such ad-hoc promotion orders issued by the respondent department promoting some Group B officials to Group A posts on the existing ratio of 6:1:2, this Hon’ble Court directed in the Order dt.03.08.2011 as under :

         

                  

                   “Having perused one of the office orders (No. 51/2011) whereby some officers were promoted from Group B to the grade of Assistant commissioner of Customs and 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”.

11.    That it is respectfully submitted that in total disregard of just and fair representation as envisaged in this court order as aforestated, the CBEC issued further promotion order dtd.12.07.2012 in the old ratio resulting in 1993 batch of Supdt. Of Central Excise, getting promotion with the 1996 batch of Supdt. of customs and 2002-03 batch of Appraisers notwithstanding the fact that the Appellant-Applicant No.1 herein in the light of the order dt.03.08.2011 passed by this Hon’ble Court in Civil Appeal No.1198/2005, submitted a detailed representation dtd.01.10.2011 to the Chairman, CBEC, not only pointing out therein the imbalance in the representation of the feeder category official to which he belongs to vis-à-vis the Appraisers the other feeder category official and the main beneficiary of the old ratio, on the promotional Group `A’ post of Assistant Commissioner (Customs & Central Excise), but also citing the guidelines and instructions issued by the nodal agency i.e DoP&T, making it obligatory for the Respondent Department  to undertake the exercise of review of the Recruitment Rules after every 5 years.

          True copy of the representation dt.01.10.2011 of the Appellant-Applicant No.1 addressed to the Chairman, CBEC is annexed hereto and marked as ANNEXURE:A3. Page No._____to ____ of the Paper Book).

12.    That it is the respectful submissions of the appellants herein that the direction no.4 contained in the order dtd.03.08.2011 was passed by this Hon’ble Court similar to the direction contained in Para-18 of the earlier judgement reported in (1997) 1 SCC 384 whereunder this Hon’ble Court while dealing with the issue similar to the present one, directed the same authority to review all such ad-hoc promotions made post-1980 in the light of the new/altered ratio.

13.    That it is the respectful submissions of the Appellants-Applicant that the aforesaid Direction No.4 cannot be read in isolation and has to be read with below quoted Direction No.1 i.e

                   “Para 8(ii) The UOI shall duly consider all such representations made before it in light of the subsequent development in the cadre strengths of the 3 feeder categories of group B service and amend/revise the RR including altering the existing ratio to secure just and fair representation of all the 3 feeder categories”

          to gather its underlying meaning and purport.  The other reason according to the respectful submission of the Appellants-Applicants is that the aforesaid direction no.4 was issued by this Hon’ble Court taking cognizance of the fact that during the pendency of the dispute a larger number of ad-hoc promotion orders were issued by the Respondent department in the old ratio notwithstanding the manifold increase in the cadre strength of Customs Superintendent (Preventive) vis-à-vis Customs Appraisers during the interregnum period and also expressly making such ad-hoc promotions subject to the outcome of the pending dispute before different courts of law including this Hon’ble Court.

          True copies of 4 ad-hoc promotion orders issued at different stage of proceedings, i) office order number 124 of 2012 dated 12^th July, 2012, ii) Office order number 149/2002 dated 1^st October, 2002, iii) office order no. 206/2002 dated 10^th December, 2002, iv)office order No. 61/2003 dated 7^th April, 2003  are annexed hereto and marked as  ANNEXURE:A4(Colly). (Page No.____to_____ of the Paper Book).

14.    That the kind notice of this Hon’ble Court is invited to the conditions attached to such ad-hoc promotion orders viz.  (a) the incumbent shall have no right to claim regularization on the promoted post and (b) the promotion order is subject to the outcome of the OAs pending before CAT, Mumbai or Writ Petition pending before Hon’ble Bombay High Court or the Civil Appeal no. 1198/2005 before this Hon’ble Court. In other words, all such promotions made on ad-hoc basis were made subject to the outcome of the Civil Appeal which was disposed of on  03.08.2011 because by this order finality was given to the dispute between the litigating parties.

15.    That as a matter of fact it is stated that for all those years till the final order was passed by this Hon’ble Court leading to alteration in the ratio, the respondent department did not take any step to regularize those ad-hoc promotions since the Respondent Department was conscious of the legitimate demands of the Appellants-Applicants which was a long standing one  and regularization of such ad-hoc promotions without effecting any alteration in the old ratio would have led to an unjust, unfair and inequitable situation thereby denying the Appellants-Applicants or for that matter the other feeder category i.e the Superintendents (Central Excise) of their just and legitimate demand of promotions proportionate to the increase in their respective cadre strength.

16.    That without prejudice to the aforesaid, it is respectfully stated that all such promotion orders having been issued on ad-hoc basis without giving the incumbents any right to claim regular promotion to the said posts, are to be regularized by the Respondent Department by initiating process under the provisions of the relevant Rules read with Direction No. 2 and 4 contained in the order dt.03.08.2011 passed by this Hon’ble Court in Civil Appeal No.1198/2005. So far as the direction no.4 as aforestated is concerned, the same is unambiguous and categorical as has been  held by this Hon’ble Court in its order dt.30.03.2012 passed in I.A No.8 in Civil Appeal No.1198/2005.

          True copy of the order dt.30.03.2012 passed by this Hon’ble Court in I.A No.8 filed in C.A No.1198/2005 is annexed hereto and marked as ANNEXURE:A5.(Page No.___ to ____ of the Paper Book).

17.    That true import of the direction no.4 which directs that all such ad-hoc promotion orders shall abide by the final decision to be taken by the respondent department is to be understood in the light of the alteration in the old ratio among the feeder category officials and not whether or not the ratio to be altered at all .  Since, the Respondent department has already taken a decision effecting alteration in the existing ratio of 6:1:2 and making it 13:2:1 by amending Rule-18 of the Rules’ 1987 as revised in 1998. It is incumbent upon the respondent department to initiate process for regularization of all such ad-hoc promotions in the new ratio of 13:2:1 without further delay. However, for reasons extraneous, the respondent department is yet to initiate any such process till date which speaks of its ill-design to allow the beneficiaries of all such ad-hoc promotion orders to continue, which is again contrary to the instructions and guidelines issued by the DoP&T which inter alia provides that the ad-hoc promotion under any circumstances shall not continue to operate beyond a period of one year and the same shall require concurrence of the DoP&T. The instructions and guidelines issued by DoP&T on the subject which are not covered by the Recruitment Rules, have been held to be mandatory by the Courts including Central Administrative Tribunal. In the present case, the Appellants-Applicants have been given to understand that the Respondent Department has resorted to such ad-hoc promotions and allowed the same to continue for years together in the absence of any concurrence either from UPSC or DoP&T and the Respondent Department is fully conscious of the complicacies and the difficulty to get the approval either from the UPSC or the DoP&T and therefore is sitting completely silent  on the issue and is not resorting to such process of regularization which might expose its concealed design of bestowing benefits only to one of such feeder category i.e Customs Appraisers who have been the highest beneficiaries of the benefits of promotions till date.

18.    That it is stated that when the issue was taken up by the Appellant-Applicants with the Central Board of Excise and Customs for implementation of the Direction No.4, the Board took a stand that the appellants - applicants must get a categorical order from this Honorable Court  to the effect that the newly framed recruitment rule giving ratio of (13 : 2 : 1) should be applicable from the date of change of cadre strength (1996/97) or the date of filing of the O.A. 485/1999 and  O.A. 556/1999 before the Central Administrative Tribunal, Mumbai. In various meetings held with the Appellant Associations, the CBEC has maintained that it will not be possible for the Central govt.  to implement this Court order from 1997 onwards and the CBEC will implement the changed ratio from the date of its publication in the gazette which is thoroughly misconceived because of the fact that there was substantial increase in the cadre strength of the Appellants in 1997-98 onwards which resulted in the filing of I.A No.6 as afore-stated and thereafter OAs before the Ld. Tribunal, a fact which has been admitted by the Respondent Department in their reply affidavit filed before this Hon’ble Court.

          True copy of a chart showing the comparative cadre strength over a period of time is annexed as ANNEXURE:A6 (Page No.____to_____ of the Paper Book). and the Indian revenue service (Customs and Central Excise) Group ‘A’ rules, 2012 is annexed as ANNEXURE­­­:A7. (Page No.____to_____ of the Paper Book).

         

19.    That after passing of the order of this Honorable Court in 03.08.2011, the Central Board of Excise and Customs in a meeting held on 16/09/2011 decided that there would be a prospective alteration of the existing feeder ratio for promotion to Group A in the ratio of 13 : 2 ;1. It was also decided in the said meeting not to implement the revised ratio from a retrospective date as the same would result in the reversal of officers at different levels including the officers who had since retired, thereby compounding the complexity. The above is notwithstanding the fact that the CBEC in File number A-23020/04/2012 Ad II dated 27^th  February 2013 has revised the Seniority list of Asstt. Commissioner of Customs & Central Excise (Group A of IRS (C & C.E.) appointed upto the year 1996-97 starting from the year 1980; Therefore, it is the respectful submissions of the Appellants-Applicants that if the Respondent CBEC can regularize promotions from 1980 to 1996 in the year 2013,   why the same procedure cannot be followed or adhered to in the present situation for regularization of all ad-hoc promotion orders made from 1997 onwards ? Thus further order/(s) by way of direction is necessary and for which the present application has been filed.

19.    That it may not be out of place to mention that the Central Administrative Tribunal in its   interim order dated 13-08-99 in O.A No. 485/1999  inter alia stated as under;

                  

                   “After  hearing  both  sides, we  direct  that  any  promotion  made  hereafter  to  the  post of  Assistant  Commissioner  of  Customs  and  Central  Excise  shall  be subject  to  further  or  final  orders  to  be  passed in the present O.A.”         

                   True copy of the order dtd.13.08.1999 passed by Ld. CAT, Mumbai in OA No.485/1999 is annexed hereto and marked as ANNEXURE:A8. (Page No.____to_____ of the Paper Book).

Therefore, for the sake of justice to the Appellant who are fighting the case from 1997, this Honorable court which has put a seal of approval on the direction of the CAT/Mumbai may give specific directions rather than leave the appellant to the mercy of the Central government, i.e. CBEC.

20.    That Appellants/Applicants have the genuine and reasonable apprehension that unless the direction no.4 contained in the order dt.03.08.2011 passed in Civil Appeal No.1198/2005 is directed to be given effect to by this Hon’ble Court by way of further order/direction, the respondent department will not give effect to the same and will allow the continuation of such ad-hoc promotions for unlimited period of time as well as regularization of such ad-hoc promotions in the old ratio.

21.    That Appellants have a prima facie case on merits and the balance of convenience also lies in their favour and shall suffer irreparable loss and injuries, if the present application is not allowed in terms of the prayer made herein after.

PRAYER

In the interest of justice and for the reasons stated herein above, it is most respectfully prayed that this Hon’ble Court may graciously be pleased to ;

a)      Pass appropriate order/(s) directing the Respondent Department to review all such ad-hoc promotion orders issued post 1997-98  to the Group A post of Assistant Commissioner (Customs & Central Excise) in the altered/new ratio as has been directed by this Hon’ble Court vide its order dt.03.08.2011 passed in C.A No.1198/2005; and/or

b)      pass such other and further order/(s) as may be deemed just and expedient in the premises of the present case.

AND FOR THIS ACT OF KINDNESS THE APPELLANTs AS IN DUTY BOUND SHALL EVER PRAY.

Drawn by:                                                             Filed by:

S.K.Das Advocate

NEW DELHI

FILED ON 09.04.2013                           (PARMANAND GAUR)

ADVOCATE FOR THE APPELLANTS