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AICESTMOA

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Wednesday, September 8, 2010

Letter to Revenue Secretary requesting to lift the Ban on ICT

ALL INDIA CENTRAL EXCISE AND SERVICE TAX MINISTERIAL OFFICERS’ FEDERATION
Pune, 08.09.2010
Dear Members,

Placed hereunder is a copy of the letter submitted to the Revenue Secretary, requesting for relaxation of the ban imposed on ICT for all as was available prior to 2004, for information.
* * * *

Ref No. AICESTMOA/10-26.
New Delhi, the 15th Sept. 2010

To,
Shri. Sunil Mitra, IAS,
The Hon’ble Revenue Secretary,
Government of India, Ministry of Finance,
Department of Revenue,
North Block, New Delhi.

Respected Sir,


Sub : Lifting of Ban on Inter-Commissionerate Transfers –
Reducing the series of litigations related /VIP references  – reg.
* * * * *


Being given to understand that based upon the Hon’ble Finance Minister’s orders a Committee is being constituted by the Central Board of Excise & Customs, this Association wishes to highlight a decision taken by the Central Board of Excise & Customs that has triggered off a series of fresh litigations, which decision, if reconsidered, would definitely reduce ample pending litigations as well as tackle the numerous VIP references pending consideration by the Board in the matter relating to grant of Inter-Commissionerate Transfers, which was prevailing in CBEC from 1980 onwards and had withstood judicial scrutiny for more than 2 decades & attained finality.

2. Kind reference is invited to a copy of Circular issued by the Central Board of Excise & Customs vide F.No.A.22015/3/2004-Ad.III A dated 19.02.2004 by which the Inter-Commissionerate Transfers of Group ‘B’, ‘C’ and ‘D’ officers were banned. The very reason for imposing ban on Inter-Commissionerate Transfers of Group ‘B’, ‘C’ and ‘D’ posts was issuance of a judgment delivered by the Central Administrative Tribunal, Principal Bench in O.A.No.2475/2002 dt.11th Nov, 2003 filed by Shri.Ghasi Ram Meena and others V/s. Union of India (copy enclosed) and its All India Ramifications post implementation of the same.

3. The issue raised before the Principal Bench of Central Administrative Tribunal, New Delhi was regarding the eligibility of transferee Inspectors, who had joined the Central Excise, Delhi Commissionerate on Inter-Commissionerate basis from other Commissionerates as per Board’s instructions dated 20.05.1980 and were placed at the bottom of the seniority list of Inspector, for promotion to the grade of Superintendent, which is a Group ‘B’ Gazetted post. The eligibility of Inter-Commissionerate Transferees possessing the desired qualifying service as incorporated in the respective Recruitment Rule was already decided in a catena of cases by the legal body and the Board has been well aware of the same w.e.f. 23rd May, 1997 i.e. the date of acceptance & issuance of instructions vide F.No.C-18012/4/97-Ad. II B clarifying that “the service rendered by an Inspector in his parent Commissionerate will count only for the purpose of determining his eligibility service for promotion to the next higher post in the transferred Commissionerate”. The DOP&T (which is the nodal Ministry) vide its O.M.No.AB.14017/12/87-Estt(RR) dated 18th March, 1988 had suggested to all Ministries/Departments that a suitable ‘Note’ may be inserted in the Recruitment Rules to the effect that senior who have completed the probation period may also be considered for promotion when their juniors who have completed the requisite service are being considered. The DOP&T had empowered all the Administrative Ministries/Departments to amend all the service rules/Recruitment Rules to incorporate the ‘Note’ as mentioned above. Unfortunately, the Recruitment Rule of Superintendent, Central Excise drafted and Notified by the CBEC suffers from non-incorporation of this ‘Note’ owing to which the junior most Inspectors who had come on Inter-Commissionerate Transfer basis and who possessed 8 years qualifying service were required to be promoted as Superintendent, Central Excise, ignoring the seniors who were short of the requisite qualifying service thus leading to a ban on ICT in all the Group ‘B’, ‘C’ and ‘D’ posts.

4. The implication of the said Principal Bench judgment was that a junior officer from the reserved category, who came in the zone of consideration of 5 times was considered eligible for promotion to the grade of Superintendent, Central Excise and promoted whereas all the seniors who had not completed the prescribed qualifying period of service i.e. 8 years were not considered for promotion. The said situation is an isolated one and is applicable only to Group ‘B’ posts owing to non-inclusion of the said ‘Note’ as proposed by DOP&T in the Recruitment Rule of Superintendent and the ramifications of the Principal Bench of Central Administrative Tribunal, New Delhi is not applicable to those posts wherein the Recruitment Rules prescribe the provision of considering seniors alongwith juniors owing to the incorporation of “Note” vide GSR. 1248 of 1984 and hence the ban on Inter-Commissionerate Transfers of Group ‘C’ and ‘D’ posts is bad in law.

5. Further, the said ban has been imposed in violation of the provisions incorporated in the Recruitment Rules of Inspector, Central Excise as well as that of Tax Assistant, thereby violating Article 14 & 16 of the Constitution of India. Subsequent upon the ban imposed, litigations were on the rise, challenging the arbitrary action of the Central Board of Excise and Customs. While the said situation continued till 2009, the CBEC vide F.No.A.22015/19/2006-Ad.III A dated 27th March, 2009 issued directives to partially relax the earlier instruction dt. 19.02.2004 by allowing Transfers in Group ‘B’, ‘C’ and ‘D’ posts from one Cadre Controlling Authority to another on spouse grounds, without any loss of seniority. Ironically it is to add that the said directive dated 27.03.2009 does not supersede the earlier instructions issued vide letter dated 20.05.1980 nor does it have any mention about a retrospective or prospective applicability thereby leading to utter chaos in the various field formations under Central Board of Excise & Customs. This decision has also triggered off a series of fresh litigations, and the Tribunal, Ernakulam Bench has quashed the operation of the seniority clause in the said order. There has been a considerable increase in the number of Court cases on Inter-Commissionerate Transfers which could have been avoided, incase the Central Board of Excise & Customs maintained the earlier settled stand taken during the year 1980 in effecting Inter-Commissionerate Transfers, by placing the transferred official in the bottom of seniority list. The said decision of placing transferred officials in the bottom of the seniority list has been a matter of protracted litigation ever since 1980 and the Hon’ble Supreme Court of India has also upheld the principles laid down by the CBEC in a catena of decisions.

6. In view of the above factual circumstances of the case and considering the fact that there is an increasing number of VIP references too alongwith your Honour’s keenness in reducing litigations/avoiding fresh litigations, the following relief is hereby being sought for, so that litigations filed in various legal forums throughout the country challenging the ban on ICT & the partial lifting of ban with seniority protection on spouse grounds are put to an end in CBEC.

RELIEF SOUGHT FOR :-
a) The Board’s letter F.No.A.22015/3/2004-Ad.III A dated 19.02.2004 may kindly be superceded by lifting the ban imposed on Inter-Commissionerate Transfers in the various Group ‘B’, ‘C’ and ‘D’ posts, & may be brought in consonance with Board’s instructions dated 20.05.1980 in respect of those posts the Recruitment Rules of which have the ‘Note’ of senior-junior clause incorporated in it.

b) The Board’s letter F.No.A.22015/19/2006-Ad.III A dated 27th March, 2009 may be amended partially by withdrawing the seniority protection clause and the same be brought in consonance with Board’s earlier instructions dated 20.05.1980 thereby ending the conflict prevailing in Inter-Commissionerate Transfers from one zone to another.

c) The CBEC may consider incorporating the said junior-senior ‘Note’ in the Recruitment Rule of Superintendent thus avoiding supercession in matters of promotion.

8. Anticipating your Honour’s personal intervention in the matter and seeking directives for an early re-consideration of the matter for which the entire Group ‘B’, ‘C’ & ‘D’ employees under Central Board of Excise & Customs would be ever grateful.

Yours faithfully,
(THOMAS MONY)
SECRETARY GENERAL

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