CLARIFICATION FROM CENGO INDIA
The regional
disparity in promotions is existed in our Department since its creation. This
regional disparity in promotion is also existed in other departments like
Railways, AG, CBDT, Postal etc. The promotions to the post of Supdt. are being
allowed zone basis on the basis of Supdt. CE RR of 1986. This RR was
challenged in high Court of Hyderabad to convert the seniority list from zonal
to all India but high court rejected the appeal and accepted the RR as
valid one. The decision of high court was challenged in Apex Court but
Apex Court accepted the decision of High Court and again directed to
determine the seniority as per decision of W.P.CIVILNO 306/88. The Apex
Court's decision in case of All India Federation of Central Excise v.U.O.I
(W.P.Civil No 306/88) vide para-7 of the said decision it is interalia held
that Superintendent of Central Excise are to be placed in their respective
seniority( consideration) list on the basis of their continuous length of
service in the cadre of Supdt. . In view of the directions of Apex Court in
Radhey Shyam v.U.O.I, DOPT has directed that a requisition in the
prescribed form is to be placed on the SSC by the appointing authority for
selection of candidates on direct recruitment basis. The selected candidates will
be appointed by the appointing authority under his jurisdiction only. For all
service matters including vigilance and seniority etc. the appointing authority
is the deciding authority as per different guidelines. The name of the selected
candidates will be taken place as per merit in the seniority list
maintained by such appointing authority. Therefore on inter Commissionrate
transfer one is loosing his seniority as he is being transferred to the
jurisdiction of another appointing authority. The Full Bench of Supreme
Court in R.D.Gupta v. U.O.I- 19909(1) ATJ 212 had clarified that if an employee
is promoted after DPC has found him fit for promotions that period should be
count for seniority. The clarification given by Gupta case is clearly consistent
with law laid down by the Apex Court in 1990(2) ATJ35-JT(2) SC 264 between
Direct recruit vrs.State of Maharashtra. It has been laid down that where an
incumbent is appointed to a post according to the Recruitment Rules his
seniority hs to be counted from the date of his appointment. Very interestingly
para-5 of the sad decision provides that 'if the initial appointment is not
made by rules but the appointee continues in the post uninterruptedly ,
the period of officiating service will be counted for his seniority. The Apex
Court in the Judgement of Radheshyam Singh (which is not related to Recruitment
Rules or seniority but related to selection by Examination ) has clearly stated
for prospective amendment of examination provision on or after 01.01.1997. After
pronouncement of judgement by Apex Court in Radheshyam case the Board
has decided for merger of all three base cadres such as Inspector/PO/Examiner
in to one cadre and accordingly one minutes was recorded but very unfortunately
none of our Associations pursued for such implementation. The Inspectors Federation raised such issue
before CAT , Mumbai in OA 451/2002, the CBEC in counter to said OA
stated that the matter is under active consideration and would be dealt separately. Board accordingly constituted Bharadwaj committee popularly known as merger
committee , Bhardwaj Committee recommended for merger of all three base
cadres prospectively w.e.f. 01.01.2006.
But at that time our Association did not raise any objection to such
recommendation.
After a long time
one of our office bearers of Mumbai has
raised such issue for merger of all three base cadres in the Associate
Committee meeting of our Association during 2011. After such meeting he has sent a mail stating
that –“ I say parity not with x y or z, I say we are
Group 'B' officers, recruited by passing same exam, we perform all the duties
including as C. Ex. Officers, possess the same qualification, Where as
our counter part does not perform the duties as C.Ex. or Service Tax officers
so we are above then them then we should be placed at same place at least if
not above where our counter part of same recruitment year reached as of now.
That parity can be achieved with this order as it says just and fair
representation and in past also ratio was fixed on same lines. So this will
serve the purpose. And all cadres can join with same demand in agitation as it
will help all of us. If by any imagination CBEC says not possible - then
separate us immediately should be our counter before restructuring with only
rider DR IRS only 50% with Central Excise and those who have more background of
excise. I am sure that if we toe this line of action vigorously there is no
answer with CBEC how to deny and why they discriminate us all these years. By
this we can even achieve unity in all cadre also”. –
However in
our AC meeting the issue was discussed again and it was resolved that we
should raise before Board to allow parity in promotions along with Examiners.
Accordingly several representations were submitted by our Association to Board
for consideration of the same, since Board did not move an inch on the basis of
our representations, an OA bearing no 2323 was filed as per resolution before
CAT(PB) with the following prayers:
(a) Pass
Order or Direction commanding the Respondents to produce the record
of the promotion policy and produce the records in r/o the action taken against
para 3.1 at S. No. 3 (BMB No. 06/2011) of the minutes of the meeting of CBEC
held on 12-1-11 as well as presentation dt 18-1-11.
(b) Direct the Respondents to Amend/revise the Recruitment Rules to bring
all the Inspectors (i.e., Inspectors of Central Excise, Preventive Officers and
Examiners of Customs) recruited in a particular year through All India Combined
Examination in parity as per their seniority position in respect of their
service conditions and promotions to maintain the principal of equal
opportunity & equality before law.
(c) Direct the Respondents to dispose of all the Representations of the
Applicants with speaking order and to save the senior Central Excise officers
from humiliation of working under their juniors recruited much after in
Customs belonging to the same cadre of Inspector in CBEC.
(d) Pass any such other order or orders, as maybe
deemed fit and proper.
The case was heard on
19.07.12 and notice was issued to
the CBEC to file the Counter. In the Counter Board pleaded about existence of
regional disparity in promotion as existed on our cadre. In Rejoinder we
pleaded for removal of the same duly merging all base cadres retrospectively.
The matter is pending for decision. While the matter is subjudice, in our last
AEC meeting held at Patna , one unit for
the first time in the history of our Association has raised a point for
removal of regional disparity retrospectively and preparation of all India
seniority list of Inspectors and the relaxation of Gr-A RR to allow
promotion to the post of AC on the basis of one all India seniority list of Inspector to be prepared by Board duly scrapping
all promotions made to the post of Superintendents on the basis of
Superintendent of Central Excise Recruitment Rules. A resolution committee was constituted in AEC
meeting to adopt resolution on the same, but as majority units wanted time for
discussion on such issue, the resolution committee in a note suggested to
discuss such issue in our next AEC meeting.
As regards relaxation of Gr-A Recruitment
Rules to allow promotions to the posts of Asst. Commissioner
on the basis of one imaginary all India seniority list of Inspector, we
have made a discussion with DOPT officials recently. The DOPT officials
opined that DOPT vide OM No. AB.14017/48/2010- Estt(RR) dated
31.12.2010 prescribes the guidelines on framing /amendment/relaxation of
RR. Part-IV of such OM provides for amendments and Relaxation. In case of
Organised Cadre only , a proposal for relaxation can be made out as a result of
review of such service if Cabinet has approved to fill up certain posts by
promotion from feeder categories . The proposals for relaxation should be
made in the formant prescribed under Annexure-IV. The formant duly filled
in should be forwarded to DOPT /UPSC along the approved seniority lists
prepared on the basis of DOPT guidelines of feeder categories who
are to be considered for such relaxation. Relaxations as a result of cadre
review can be considered in case of feeder categories only but this facilities
can not be extended to sub feeder categories. No relaxation can be provided
with reference to fixation of seniority in sub feeder categories.
Relaxation of RR does not mean relaxation of seniority. It is very
unfortunate to state that many of
our friends are
having with an opinion that AIACEGEO is not interested for removal of
regional disparity. We want to make it clear that parity is the basic
concept of our Constitution, hence AIACEGEO wants parity in
promotion. At the cost of repetition we want to clarify that first, all our friends raised in the
meeting for one issue that no senior should work under junior and wanted
parity with Examiners and accordingly on the basis of the resolution
representations were submitted to Board by AIACEGEO for consideration and
thereafter an OA was filed in CAT as per resolution , which is at
present pending for decision. If parity with examiner will be settled,
automatically the issue of regional disparity will be solved. The
regional disparity as existed in the cadre of Superintendent can be
settled if the Superintends of Central Excise Recruitment Rules is amended
retrospectively with a retrospective provision of preparation of all
India seniority list in the cadre of Inspector and with due declaration that
all the promotions made to the post of Superintendents till date are
illegal and fresh promotions to the cadre of Superintendent on the basis
of so called proposed amended RR are to be granted. However the
removal of regional disparity or preparation of seniority list in the cadre of
Inspector is no way related to CR. For removal of regional disparity or
preparation of seniority list as per merit list, a case is required to be filed
challenging the Supdt. RR. But some friends have recently advocated that
the regional disparity can be removed if the Gr-A RR is being relaxed to
allow promotions to the post of AC on the basis of all India seniority list of
Inspector duly ignoring the promotions granted to the post of
Superintendent. Recently the Solicitor General has given an opinion that
Gr-A RR can not be relaxed violating the article 14 of constitution of
India. DOPT has also already clarified that the RR can be relaxed
considering the following four issues:
(1) The relaxation shall not violate the provisions
of Recruitment Rules of feeder categories.
(2) The relaxation shall not violate the Guidelines
of general principles of fixation of seniority as issued by DOPT from time to
time.
(3 ) The relaxation shall not violate any decisions
of any Court.
(4) The relaxation shall not violate the provisions
of article 14 & 16 of Constitution of India.
As regards point nos.(1) &(2)
above- Since promotions to the post of Superintendent are being
allowed on the basis of Superintendent of Central Excise
Recruitment Rules, the promotions to higher posts must be granted on the basis
of seniority list or gradation list prepared as per DOPT guidelines in
the cadre of Superintendent only.
As regards point (3) - The Apex Court has decided
to prepare the seniority list in the cadre of Superintendent only to
allow promotion to the the post of AC on prescribed ratio.
As regards point (4) above- Inspector is one class
and Superintendent is another class. Comparison for the purpose of article 14
is required to be made in same class, otherwise the same will be considered
treating un equal with equal and that will violate the basic principles
of Constitution of India.
Therefore in the present circumstance RR may
not be relaxed. Unless the provisions of Supdt RR is set aside by a court of
laws with retrospective effect, the regional disparity can not be solved
retrospectively. Since AIACEGEO has already filed a case and took a stand as
per resolution, it is not possible to withdraw the case and file another
petition with a different footings., In the case in the counter, Board has also
raised about disparity as existed in Zonal basis, but in rejoinder
AIACFEGEO appealed for removal of the same. AIACEGEO is working for
the benefits of all including stagnated zone. AIACEGEO is
also interested for removal of intra cadre as well as inter cadre disparities.
In the case of T.R. Kapur & Ors vs State Of Haryana & Ors on 17
December, 1986 Supl. 584 JT 1986 1092 1986 SCALE (2)1051 CITATOR INFO : F
1987 SC 424 (11) RF 1987 SC1676 (17) R 1988 SC1645 (6) RF 1989 SC 307 (5) D
1990 SC1072 (5) , the Apex court has decided that benefits acquired under
existing service rules cannot be taken away by amendment of rules with
retrospective effect. Persons appointed or promoted under a valid Recruitment
Rules are seniors to officers of feeder categories. Recruitment Rules can
not be amended retrospectively to make such officers juniors to
officers who promoted or appointed later on. Service laws can not be
amended retrospectively. In Sabarwal, Ajit Singh-I, Ajit Sing-II, Virpal
Singh Chauhan cases it was decided to amend service laws prospectively
only. The Apex Court in the Judgement of Radheshyam Singh (which is not related
to Recruitment Rules or seniority but related to selection by Examination ) has
clearly stated for prospective amendment of examination provision. Para 10
reproduced.
“10. The argument advanced by the learned counsel
for the respondents that this process of zone-wise selection is in vogue since
1975 and has stood the test of time cannot be accepted for the simple reason
that it was never challenged by anybody and was not subjected to judicial
scrutiny at all. If on judicial scrutiny it cannot stand the test of
reasonableness and constitutionality it cannot be allowed to continue and has
to be struck down. But we make it clear that this judgment will have
prospective application and whatever selections and appointments have so far
been made in accordance with the impugned process of selection shall not be
disturbed on the basis of this judgment. But in future no such selection shall
be made on the zonal basis. If the Government is keen to make zone-wise
selection after allocating some posts for each zone it may make such scheme or
rules or adopt such process of selection which may not clash with the
provisions contained in Article 14 and 16 of the Constitution of India having
regard to the guidelines laid down by this Court from time to time in various
pronouncements.”
CENGO INDIA has already stated that in the above
case, it was decided for the manner to conduct examination for selection on all
India basis . This judgement is effective only from the date of pronouncement,
it is no way related to Inspectors who joined on or before 31.12. 1996.
