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.